114th Congress } { Rept. 114-109
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
UNITING AND STRENGTHENING AMERICA BY FULFILLING RIGHTS AND ENSURING
EFFECTIVE DISCIPLINE OVER MONITORING ACT OF 2015
_______
May 8, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2048]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2048) to reform the authorities of the Federal
Government to require the production of certain business
records, conduct electronic surveillance, use pen registers and
trap and trace devices, and use other forms of information
gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes, having considered
the same, reports favorably thereon without amendment and
recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 10
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 13
New Budget Authority and Tax Expenditures........................ 13
Congressional Budget Office Cost Estimate........................ 13
Duplication of Federal Programs.................................. 16
Disclosure of Directed Rule Makings.............................. 16
Performance Goals and Objectives................................. 16
Advisory on Earmarks............................................. 16
Section-by-Section Analysis...................................... 16
Changes in Existing Law Made by the Bill, as Reported............ 37
Committee Jurisdiction Letters................................... 144
Purpose and Summary
H.R. 2048, the ``USA FREEDOM Act of 2015,'' prohibits bulk
collection of records under Section 215 of the USA PATRIOT Act
(Section 501 of the Foreign Intelligence Surveillance Act
(FISA)), under the FISA Pen Register and Trap and Trace Device
statute, and under National Security Letter (NSL) authorities.
The Act creates a new program for the targeted collection of
telephone metadata, provides greater privacy and civil
liberties protections for Americans, expands existing
congressional oversight provisions, and creates greater
transparency of national security programs operated pursuant to
FISA.
Background and Need for the Legislation
In June 2013, Edward Snowden, a former defense contractor
and Central Intelligence Agency (CIA) employee, released
classified material on top-secret National Security Agency
(NSA) data collection programs. On June 5, 2013, it was
reported that on April 25, 2013, the Foreign Intelligence
Surveillance Court (FISC) granted an order requested by the FBI
pursuant to section 215 of the USA PATRIOT Act,\1\ which was
reauthorized by Congress in 2011 and expires on June 1, 2015.
This secondary order compelled Verizon Communications, Inc., on
an ``ongoing, daily basis,'' to provide the NSA with ``all call
detail records or telephony metadata'' for communications made
via its systems, both within the United States and between the
U.S. and other countries.\2\ ``Telephony metadata'' includes
the numbers of both parties on a call, unique identifiers, and
the time and duration of all calls. The order gave the
government the authority to obtain the call detail records or
``telephony metadata'' for a 3-month period, ending on July 19,
2013.\3\
---------------------------------------------------------------------------
\1\50 U.S.C. Sec. 1861 (2012).
\2\See Verizon forced to hand over telephone data--full court
ruling, the Guardian, Jun. 5, 2013, available at http://
www.guardian.co.uk/world/interactive/2013/jun/06/verizon-telephone-
data-court-order.
\3\Id.
---------------------------------------------------------------------------
On March 27, 2014, President Obama announced several
changes to the conduct of foreign intelligence activities in
response to the unauthorized disclosure of classified
information by Edward Snowden. The President announced changes
that imposed both a substantive limit on the scope of NSA's
access to telephony metadata as well as a procedural limit on
when the NSA may access the data in the first place. The
substantive limit restricts the results of queries of telephony
metadata to two ``hops'' (a ``hop'' is a colloquial term for a
connection between two telephone numbers). Prior to the
President's speech, the program had been authorized to receive
query results of up to three ``hops.''
The procedural limit also requires that the FISC approve
queries of telephony metadata on a case-by-case basis and
before any query is conducted. Under the bulk metadata
collection program, the NSA was permitted to query the data
without court approval and based on one of 22 NSA officials'
determination that there was a reasonable articulable suspicion
(RAS) that the selector is associated with an international
terrorist organization. As described by the President, the new
framework requires the FISC to approve each selector for use in
queries. Such an arrangement was not unprecedented. For several
months in 2009, the FISC had imposed a similar judicial pre-
approval requirement after the government reported violations
of the court-ordered privacy protections intended to prevent
access to the metadata. This pre-approval requirement was
subsequently lifted after the FISC was satisfied that
sufficient changes had been made to correct the earlier
compliance violations.
At the same time, the President announced that the
government should no longer store telephone metadata in bulk;
rather, the records should remain at the telephone companies
for the length of time such records are stored in the ordinary
course of business. Also, the President stated that the court-
approved numbers could be used to query the data over a limited
period of time without returning to the FISC for approval, the
production of records would be ongoing and prospective, and the
companies should be compelled by court order to provide
technical assistance to ensure that the records can be queried
and that results are transmitted to the government in a usable
format and in a timely manner.\4\
---------------------------------------------------------------------------
\4\Press Release, The White House, Office of the Press Secretary,
Statement by the President on the Section 215 Bulk Metadata Program
(Mar. 27, 2014), available at http://www.whitehouse.gov/the-press-
office/2014/03/27/statement-president-section-215-bulk-metadata-
program.
---------------------------------------------------------------------------
In the 113th Congress, the House Judiciary Committee
conducted aggressive oversight of these programs. In July 2013,
the Committee held a public hearing at which testimony was
received from officials with the Justice Department, the Office
of the Director of National Intelligence, the NSA and the FBI
and civil liberties groups. In September 2013, the Committee
held a classified hearing where members were afforded the
opportunity to further probe these programs with officials from
DOJ, ODNI, NSA, and FBI. In February 2014, the Committee held a
comprehensive hearing to examine the various recommendations to
reform these programs offered by the President's Review Group
on Intelligence and Communications Technologies and the Privacy
and Civil Liberties Oversight Board. The Committee reported
H.R. 3361, the USA FREEDOM Act, with unanimous support. The
bill passed the House on May 22, 2014, by a vote of 303-121.
Congress enacted FISA in 1978 for the purpose of
establishing a ``statutory procedure authorizing the use of
electronic surveillance in the United States for foreign
intelligence purposes.''\5\ FISA provides a variety of
authorities for the collection of foreign intelligence
information in authorized investigations from sources inside
the United States.
---------------------------------------------------------------------------
\5\H.R. Rep. No. 95-1283, pt. 1, at 22 (1978).
---------------------------------------------------------------------------
The law applied the judicial approval process to certain
surveillance activities (almost all of which occur within the
United States), but excluded the vast majority of overseas
foreign intelligence surveillance activities, including most
surveillance focused on foreign targets, from FISA's judicial
process.\6\ Put otherwise, the FISA protections were not
extended to foreign communications abroad because the
government has the inherent authority to collect such
communications without constitutional constraints.
---------------------------------------------------------------------------
\6\Prepared Statement of Kenneth L. Weinstein on the Foreign
Intelligence Surveillance Act before the House Permanent Select
Committee on Intelligence on Sept. 6, 2007.
---------------------------------------------------------------------------
FISA authorizes investigations to obtain foreign
intelligence not concerning a U.S. person, investigations to
protect against international terrorism, and investigations of
clandestine intelligence activities. FISA authorities can be
used to target both U.S. and non-U.S. persons, although there
are limitations on the use of FISA authorities against U.S.
persons.
Title I of FISA governs the use of electronic surveillance
if there is probable cause to believe that the target is a
foreign power or agent of a foreign power and that the
facilities or locations of the surveillance is being used, or
about to be used, by a foreign power or agent of a foreign
power.\7\ Title I provides, however, that no United States
person (i.e. citizen or lawful permanent resident) may be
considered a foreign power or agent of a foreign power based
solely upon First Amendment protected activities.\8\ An
application for electronic surveillance must specify proposed
minimization procedures.
---------------------------------------------------------------------------
\7\50 U.S.C. Sec. 1801 et seq. (2012).
\8\Id.
---------------------------------------------------------------------------
FISA defines electronic surveillance as:
(1) Lthe acquisition by an electronic, mechanical, or
other surveillance device of the contents of any wire
or radio communication sent by or intended to be
received by a particular, known United States person
who is in the United States, if the contents are
acquired by intentionally targeting that United States
person, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would
be required for law enforcement purposes;
(2) Lthe acquisition by an electronic, mechanical, or
other surveillance device of the contents of any wire
communication to or from a person in the United States,
without the consent of any party thereto, if such
acquisition occurs in the United States, but does not
include the acquisition of those communications of
computer trespassers that would be permissible under
section 2511(2)(i) of Title 18;
(3) Lthe intentional acquisition by an electronic,
mechanical, or other surveillance device of the
contents of any radio communication, under
circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required
for law enforcement purposes, and if both the sender
and all intended recipients are located within the
United States; or
(4) Lthe installation or use of an electronic,
mechanical, or other surveillance device in the United
States for monitoring to acquire information, other
than from a wire or radio communication, under
circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required
for law enforcement purposes.\9\
---------------------------------------------------------------------------
\9\50 U.S.C. Sec. 1801(f) (2012).
The intent of paragraph (1) of the definition is clear--if
the government intentionally targets a particular, known U.S.
person in the United States for foreign intelligence
surveillance purposes, it is within FISA's original scope.\10\
The definition also makes clear that the opposite is true--if
the government targets someone overseas, it is outside FISA's
scope.\11\
---------------------------------------------------------------------------
\10\See supra note 6 at 4.
\11\Id.
---------------------------------------------------------------------------
Title III of FISA authorizes physical searches based upon
probable cause similar to that for Title I electronic
surveillance.\12\
---------------------------------------------------------------------------
\12\50 U.S.C. Sec. 1821 et seq. (2012).
---------------------------------------------------------------------------
Title IV of FISA authorizes the use of pen register and
trap and trace devices based upon a certification that ``the
information likely to be obtained is foreign intelligence
information not concerning a United States person or is
relevant to an ongoing investigation to protect against
international terrorism or clandestine intelligence
activities.''\13\
---------------------------------------------------------------------------
\13\50 U.S.C. Sec. 1841 et seq. (2012).
---------------------------------------------------------------------------
Title V of FISA authorizes the production of business
records or other tangible things based upon ``a statement of
facts showing that there are reasonable grounds to believe that
the tangible things sought are relevant to a [foreign
intelligence, international terrorism, or espionage
investigation]'' and an ``enumeration of minimization
procedures'' to be applied. These provisions also include
recipient non-disclosure provisions, grounds for recipients to
challenge such production or non-disclosure requirements, and
government reporting requirements.\14\
---------------------------------------------------------------------------
\14\50 U.S.C. Sec. 1861 et seq. (2012).
---------------------------------------------------------------------------
Title VII of FISA authorizes the government to acquire
foreign intelligence information from sources inside the U.S.
to target foreign persons outside the U.S.\15\ In 1978,
satellite or ``radio'' technologies carried almost all
transoceanic communications. Surveillance of these
international communications would only become ``electronic
surveillance'' under FISA if (1) the government intentionally
targeted a U.S. person inside the United States, or (2) all of
the participants to the conversation were inside the United
States.\16\ Therefore, in 1978, the government did not have to
first acquire a FISA surveillance order to acquire the
communications of a foreign target overseas--even if one of the
communicants was in the United States.
---------------------------------------------------------------------------
\15\50 U.S.C. Sec. 1881 et seq. (2012).
\16\See supra note 6 at 4-5.
---------------------------------------------------------------------------
FISA establishes two courts--the FISC and the U.S. Foreign
Intelligence Surveillance Court of Review (FISCR), which are
comprised of Federal judges to address applications for FISA
court orders.\17\
---------------------------------------------------------------------------
\17\50 U.S.C. Sec. 1803(a) (2012).
---------------------------------------------------------------------------
FISA directs that the Chief Justice of the United States
must publicly designate eleven U.S. district court judges from
seven of the United States judicial circuits, of whom no fewer
than three must reside within 20 miles of the District of
Columbia. These eleven judges constitute the FISC, which has
jurisdiction over applications for and orders approving
electronic surveillance, physical searches, pen registers or
trap and trace devices, or orders for production of tangible
things anywhere within the United States under FISA.
The Chief Justice also publicly designates three U.S.
district court or U.S. court of appeals judges who together
make up the FISA Court of Review.\18\ This court has
jurisdiction to review any denial of an order under FISA. If
the United States appeals a FISC denial of an application, the
record from the FISC must be transmitted under seal to the
Court of Review.
---------------------------------------------------------------------------
\18\50 U.S.C. Sec. Sec. 1803(a), 1822(c) (2012).
---------------------------------------------------------------------------
Section 215 of the USA PATRIOT Act expanded the scope of
documents that could be sought under a Section 501 FISA court
order and amended the standard required before a court order
could be issued compelling the production of documents.
In 1976, the Supreme Court held that an individual's bank
account records did not fall within the protection of the
Fourth Amendment's prohibition on unreasonable searches and
seizures.\19\ Subsequently, Congress passed laws protecting
various types of transactional information, but built in
exceptions providing some access to statutorily protected
records for counter intelligence purposes. Similar statutory
protections were also enacted for electronic communications
records and credit bureau records.
---------------------------------------------------------------------------
\19\U.S. v. Miller, 425 U.S. 435 (1976).
---------------------------------------------------------------------------
As with financial records, these later statutes also
included exceptions for access to records relevant to
counterintelligence investigations. These exceptions comprise
the authority for National Security Letters (NSLs), which can
be used to compel the production of certain types of records.
In 1998, Congress amended FISA to provide access to certain
records that were not available through NSLs.\20\ Specifically,
it created a mechanism for Federal investigators to compel the
production of records from common carriers, public
accommodation facilities, storage facilities, and vehicle
rental facilities.\21\ Applications for orders under this
section had to be made by FBI agents with a rank of Assistant
Special Agent in Charge or higher and investigations could not
be conducted solely on the basis of activities protected by the
First Amendment.\22\
---------------------------------------------------------------------------
\20\Intelligence Authorization Act for FY 1999, Pub. L. 105-272,
112 STAT. 2396, tit. VI, Sec. 602 (Oct. 20, 1998).
\21\Id.
\22\Id.
---------------------------------------------------------------------------
Under these procedures the FISC would issue an order if the
application contained ``specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power.''\23\
Recipients of an order under this section were required to
comply with it, and were also prohibited from disclosing to
others that an order had been issued.\24\
---------------------------------------------------------------------------
\23\Id.
\24\Id.
---------------------------------------------------------------------------
In 2001, Section 215 of the USA PATRIOT Act made several
changes to the procedures under FISA for obtaining business
records.\25\ Among these was an expansion of the scope of
records that were subject to compulsory production. Prior to
enactment of the USA PATRIOT Act, only records from four
explicit categories of businesses could be obtained. Section
215 expanded business records to ``any tangible things.''\26\
---------------------------------------------------------------------------
\25\P.L. 107-56, Sec. 215 codified at 50 U.S.C. Sec. 1862(a)-(b)
(2012).
\26\Id., codified at 50 U.S.C. Sec. 1861(a)(1) (2012).
---------------------------------------------------------------------------
In response to concerns that this expanded scope might have
a chilling effect on rights protected by the First, Second, and
Fourth Amendments, the USA PATRIOT Improvement and
Reauthorization Act of 2005 created additional protections for
certain ``tangible things.'' Under this amendment, if the
records sought were ``library circulation records, library
patron lists, book sales records, book customer lists, firearms
sales records, tax return records, educational records, or
medical records containing information that would identify a
person,'' the application has to be approved by one of three
high-ranking FBI officers.\27\
---------------------------------------------------------------------------
\27\Applications for these records could be made only by the
Director of the Federal Bureau of Investigation, the Deputy Director of
the Federal Bureau of Investigation, or the Executive Assistant
Director for National Security. This authority cannot be further
delegated. See 50 U.S.C. Sec. 1861(a)(3) (2012).
---------------------------------------------------------------------------
Section 215 of the USA PATRIOT ACT also modified the
standard that had to be met before an order compelling
production of documents could issue from the FISC. Prior to
enactment of Section 215, an applicant had to have ``specific
and articulable facts giving reason to believe that the person
to whom the records pertain is a foreign power or an agent of a
foreign power.''\28\ In contrast, under Section 215, the
applicant only needed to ``specify that the records concerned
[were] sought for a [foreign intelligence investigation.]''\29\
---------------------------------------------------------------------------
\28\See supra note 20.
\29\P.L. 107-56, Sec. 215, codified at 50 U.S.C. Sec. 1861(b)(2)
(2012).
---------------------------------------------------------------------------
As part of the 2005 reauthorization, Congress further
amended FISA procedures for obtaining business records. The
applicable standard was again changed to require ``a statement
of facts showing that there are reasonable grounds to believe
that the tangible things sought are relevant to a [foreign
intelligence investigation.]''\30\ Records are presumptively
relevant if they pertain to:
---------------------------------------------------------------------------
\30\P.L. 109-177, Sec. 106(b) (effective Mar. 9, 2006).
La foreign power or an agent of a foreign
---------------------------------------------------------------------------
power;
Lthe activities of a suspected agent of a
foreign power who is the subject of such authorized
investigation; or
Lan individual in contact with, or known to, a
suspected agent of a foreign power who is the subject
of such authorized investigation;
Orders issued under Section 215 are accompanied by
nondisclosure orders prohibiting the recipients from disclosing
that the FBI has sought or obtained any tangible things
pursuant to a FISA order. However, the recipient may discuss
the order with other persons as necessary to comply with the
order, with an attorney to obtain legal advice or assistance,
or with other persons as permitted by the FBI.\31\ The
recipient must identify persons to whom disclosure has been
made, or is intended to be made, if the FBI requests, except
that attorneys with whom the recipient has consulted do not
need to be identified.\32\
---------------------------------------------------------------------------
\31\Id., codified at 50 U.S.C. Sec. 1861(d)(1) (2012).
\32\Id., codified at 50 U.S.C. Sec. 1861(d)(2)(C) (2012).
---------------------------------------------------------------------------
The 2005 reauthorization also provided procedures for
recipients of Section 215 orders to challenge the judicial
review of orders compelling the production of business
records.\33\ Once a petition for review is submitted by a
recipient, a FISC judge must determine whether the petition is
frivolous within 72 hours.\34\ If the petition is frivolous, it
must be denied and the order affirmed.\35\ Otherwise the order
may be modified or set aside if it does not meet the
requirements of FISA or is otherwise unlawful.\36\ Appeals by
either party may be heard by the Foreign Intelligence Court of
Review and the Supreme Court.\37\
---------------------------------------------------------------------------
\33\Id., codified at 50 U.S.C. Sec. 1861(f)(2)(A)(i) (2012).
\34\Id., codified at 50 U.S.C. Sec. 1861(f)(2)(A)(ii) (2012).
\35\Id.
\36\P.L. 109-177, Sec. 106(b), codified at 50 U.S.C.
Sec. 1861(f)(2)(B) (2012).
\37\Id., codified at 50 U.S.C. Sec. 1861(f)(3) (2012).
---------------------------------------------------------------------------
The June 2013 Snowden leaks revealed the existence of a
program operated by the NSA under Section 215 of the PATRIOT
Act (Section 501 of FISA). The program was initiated in 2001,
brought under the supervision of the FISC in 2006, and entailed
the ongoing, daily collection of bulk telephony metadata from
certain U.S. telecommunications carriers.
Telephony metadata includes communications routing
information, including session identifying information (e.g.,
originating and terminating telephone number, International
Mobile station Equipment Identity (IMEI) number, International
Mobile Subscriber Identity (IMSI) number, etc.), trunk
identifier, telephone calling card numbers, and time and
duration of a call.\38\
---------------------------------------------------------------------------
\38\In re Application of the Federal Bureau of Investigation for an
Order Requiring the Production of Tangible Things, Doc. No. BR 13-109
(FISC Aug. 22, 2013).
---------------------------------------------------------------------------
The FISC approved this type of collection relying on the
Section 215 standard. The court noted in its August 2013 order
that ``[a]s an initial matter and as a point of clarification,
the government's burden under Section 215 is not to prove that
the records sought are, in fact, relevant to an authorized
investigation. The explicit terms of the statute require `a
statement of facts showing that there are reasonable grounds to
believe that the tangible things sought are relevant. .
.'''\39\ The court adopted an interpretation of this standard
from the government's initial application and accompanying
memorandum of law that ``[i]nformation is `relevant' to an
authorized international terrorism investigation if it bears
upon, or is pertinent to, that investigation.''\40\
---------------------------------------------------------------------------
\39\Id at 18. (emphasis in original).
\40\Id.
---------------------------------------------------------------------------
In support of an interpretation of the Section 215
standard, the government argued--and the FISC agreed--that
``[a]nalysts know that the terrorists' communications are
located somewhere in the metadata produced under this
authority, but cannot know where until the data is aggregated
and then accessed by their analytic tools under limited and
controlled queries . . . [a]ll of the metadata collected is
thus relevant, because the success of this investigative tool
depends on bulk collection.''\41\ The FISC concluded that
``[t]he fact that international terrorist operatives are using
telephone communications, and that it is necessary to obtain
the bulk collection of a telephone company's metadata to
determine those connections between known and unknown
international terrorist operatives as part of authorized
investigations, is sufficient to meet the low statutory hurdle
set out in Section 215 to obtain a production of records.''\42\
---------------------------------------------------------------------------
\41\Id. at 21.
\42\Id. at 22-23.
---------------------------------------------------------------------------
On May 7, 2015, the U.S. Court of Appeals for the Second
Circuit issued a decision in ACLU v. Clapper,\43\ holding that
Section 215 ``and the statutory scheme to which it relates do
not preclude judicial review, and the bulk telephone metadata
program is not authorized by Section 215.''\44\ Specifically,
the court declined to read the ``relevance'' standard of
Section 215 as authorizing the broad-sweeping, nationwide
collection of telephone metadata that is then queried by the
NSA in authorized international terrorism investigations. The
court stated that
---------------------------------------------------------------------------
\43\Case No. 14-42-cv (2d Cir. May 7, 2015).
\44\Id. at 2.
The records demanded are all-encompassing; the
government does not even suggest that all of the
records sought, or even necessarily any of them, are
relevant to any specific defined inquiry. Rather, the
parties ask the Court to decide whether Sec. 215
authorizes the ``creation of a historical repository of
information that bulk aggregation of the metadata
allows'' because bulk collection to create such a
repository is ``necessary to the application of certain
analytic techniques.'' That is not the language in
---------------------------------------------------------------------------
which grand jury subpoenas are traditionally discussed.
Thus, the government takes the position that the
metadata collected--a vast amount of which does not
contain directly ``relevant'' information, as the
government concedes--are nevertheless ``relevant''
because they may allow the NSA, at some unknown time in
the future, utilizing its ability to sift through the
trove of irrelevant data it has collected up to that
point, to identify information that is relevant. We
agree with appellants that such an expansive concept of
``relevance'' is unprecedented and unwarranted.\45\
---------------------------------------------------------------------------
\45\Id. at 58-59 (internal citations omitted).
---------------------------------------------------------------------------
The court noted, however, that
[W]e are not unmindful that a full debate by Congress
of the appropriateness of a program such as that now
operated by the government may result in the approval
of a program with greater safeguards for privacy, or
with other limitations, that are not now in place and
that could alter or even moot the issues presented by
appellants. In the last Congress, for example, a bill
to authorize a modified version of the telephone
metadata program, supported by the Administration,
passed the House of Representatives; a similar bill
failed in the Senate after a majority of senators--but
not the required 60 to cut off debate--sought to bring
the bill to a vote. As noted above, more recently, on
April 30, 2015, a modified version of the USA FREEDOM
Act, which would limit the bulk metadata program in
various ways, was passed by the House Judiciary
Committee and a vote in that Chamber is expected later
this month. An identical bill has been introduced in
the Senate and referred to the Senate Judiciary
Committee.\46\
---------------------------------------------------------------------------
\46\Id. at 92-93 (internal citations omitted).
Although the Second Circuit reversed the district court's
grant of the government's motion to dismiss, the court declined
to issue a preliminary injunction against the bulk telephone
---------------------------------------------------------------------------
metadata program.
We note that at the present time, Sec. 215 is scheduled
to expire in just several weeks. The government
vigorously contends that the program is necessary for
maintaining national security, which of course is a
public interest of the highest order. Allowing the
program to remain in place for a few weeks while
Congress decides whether and under what conditions it
should continue is a lesser intrusion on appellants'
privacy than they faced at the time this litigation
began. In light of the asserted national security
interests at stake, we deem it prudent to pause to
allow an opportunity for debate in Congress that may
(or may not) profoundly alter the legal landscape.\47\
---------------------------------------------------------------------------
\47\Id. at 95.
---------------------------------------------------------------------------
Hearings
The Committee on the Judiciary held no hearings on H.R.
2048.
Committee Consideration
On April 30, 2015, the Committee met in open session and
ordered the bill H.R. 2048 favorably reported without
amendment, by a rollcall vote of 25 to 2, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 2048.
1. Amendment #1, offered by Mr. King. This amendment allows
the head of an element of the intelligence community to enter
into a voluntary agreement with a person to compensate such
person for retaining call detail records for a period of time.
This amendment was defeated by a rollcall vote of 4 to 24.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 4 24
------------------------------------------------------------------------
2. Amendment #2, offered by Mr. Poe, Ms. Lofgren, Mr.
Jordan, Ms. DelBene, Mr. Labrador, and Mr. Jeffries. This
amendment prohibits searching a database containing information
collected under Section 702 of FISA using a U.S. Person Search
Query except with a showing of FISA probable cause, in an
emergency, or with such U.S. Person's consent. This amendment
also prohibits a Federal Agency from mandating or requesting a
``backdoor'' into commercial products that can be used for
surveillance. This amendment was defeated by a rollcall vote of
9 to 24.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 9 24
------------------------------------------------------------------------
3. Motion to report H.R. 2048 favorably to the House. The
motion was agreed to by a vote of 25 to 2.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA)..................................
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 25 2
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2048, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 8, 2015.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2048, the ``USA
FREEDOM Act of 2015.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2840.
Sincerely,
Keith Hall,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 2048--USA FREEDOM Act of 2015.
As ordered reported by the House Committee on the Judiciary
on April 30, 2015.
H.R. 2048 would make several amendments to the
investigative and surveillance authorities of the United States
government, and would specify the conditions under which the
Federal Government may conduct certain types of surveillance.
CBO does not provide estimates for the cost of classified
programs; therefore, this estimate addresses only the
unclassified aspects of the bill. Under that limitation, CBO
estimates that implementing H.R. 2048 would cost $15 million
over the 2016-2020 period, subject to the appropriation of the
necessary amounts.
Enacting H.R. 2048 also could affect direct spending and
revenues; therefore, pay-as-you-go procedures apply. The bill
could result in the collection of additional criminal penalties
because it would extend the authority of the government to
conduct surveillance in certain instances for four years and
would establish new crimes relating to certain acts of
terrorism. Such penalties are recorded as revenues, deposited
in the Crime Victims Fund, and later spent. CBO anticipates
that any additional amounts collected under the bill would be
minimal and the net impact on the deficit of any additional
collections and spending would be insignificant.
Effects on the Federal Budget
The bill would amend the Foreign Intelligence Surveillance
Act (FISA). Those amendments would affect the operations of the
Foreign Intelligence Surveillance Court (FISC) and the
Judiciary. First, H.R. 2048 would require the FISC to designate
at least five amici curiae, or ``friends of the court,'' to
assist the court when the government makes an application under
FISA that presents a novel or significant interpretation of
FISA. Second, the bill would limit the collection of telephone
call records, thereby requiring the intelligence agencies--
acting through the Department of Justice--to seek additional
warrants from the FISC to access such data. Finally, the bill
would require an annual report by the Director of the
Administrative Office of the U.S. Courts (AOUSC) that includes
data on certain types of FISA orders. Based on information from
the AOUSC, CBO estimates that implementing those requirements
would cost $5 million over the 2016-2020 period, assuming
appropriation of the necessary amounts.
In addition, the bill would require Federal agencies to
conduct several program assessments and reviews, and would
establish new reporting requirements. Section 108 would require
the Inspectors General of the Justice Department and the
Intelligence Community to assess the effectiveness of the
surveillance programs affected by the bill; section 402 would
require the Director of National Intelligence to conduct
declassification reviews of certain court decisions, orders,
and opinions related to FISA. CBO estimates that fulfilling
those requirements would cost $10 million over the 2016-2020
period, assuming appropriation of the necessary amounts.
Intergovernmental and Private-Sector Mandates
H.R. 2048 would impose two mandates, as defined in the
Unfunded Mandates Reform Act (UMRA), on both private and
intergovernmental entities. The bill would expand liability
protections and limit the ability of plaintiffs to sue in cases
where a defendant provides information to the Federal
Government pursuant to a FISA order. It also would require
entities, when compelled to provide information about telephone
calls to Federal officials, to protect the secrecy of the
records and to minimize any disruption of services.
CBO estimates that the costs of those mandates would be
small. The change in expanded liability protection is a slight
modification to current law, and CBO estimates that the
elimination of any legal right of action for future plaintiffs
would affect a limited number of potential lawsuits.
Information from the Department of Justice indicates that
public entities receive few requests for call records, and the
costs to those entities of providing that information are
negligible. In addition, since public and private entities
already take action to protect private information in complying
with requests from the government, the incremental cost to
those entities would be insignificant. Further, public and
private entities would be compensated by the Federal Government
at the prevailing rate for the services they would be required
to provide. Consequently, CBO estimates that the total costs to
public and private entities of all the mandates in the bill
would fall below the intergovernmental and private-sector
thresholds established in UMRA ($77 million and $154 million in
2015, respectively, adjusted annually for inflation).
Section 4 of UMRA excludes from the application of that act
any legislative provisions that are necessary for the
ratification or implementation of international treaty
obligations. CBO has determined that Title VIII of the bill
fits within that exclusion, because that title would implement
the obligations of various treaties for maritime and nuclear
activities to which the U.S. is a party.
Staff Contacts
The CBO staff contacts for this estimate are Mark
Grabowicz, Marin Burnett, and Bill Ma (for Federal costs),
J'nell L. Blanco (for the intergovernmental effects), and Logan
Smith (for the private-sector effects). This estimate was
approved by Theresa Gullo, Assistant Director for Budget
Analysis.
Duplication of Federal Programs
No provision of H.R. 2048 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
No provision of H.R. 2048 directs a specific rule making
within the meaning of 5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2048, the USA FREEDOM Act, reforms Section 215 of the USA
PATRIOT Act (Section 501 of FISA), clarifies several other
national security authorities, expands existing oversight
provisions, and creates greater transparency of national
security programs operated pursuant to FISA.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2048 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1--Short title; table of contents.
This section provides that the short title of the bill is
the ``Uniting and Strengthening America by Fulfilling Rights
and Ensuring Effective Discipline Over Monitoring Act of 2015''
or the ``USA FREEDOM Act of 2015.'' This section also provides
a table of contents for the bill.
Sec. 2--Amendments to the Foreign Intelligence Surveillance Act of
1978.
This section provides that a reference to an amendment to
or repeal of this Act is considered to be a reference to the
Foreign Intelligence Surveillance Act of 1978 (FISA), except as
otherwise provided.
Title I--FISA Business Record Reforms
Sec. 101--Additional requirements for call detail records.
On January 17, 2014, President Obama announced reforms to
the collection of signals intelligence by the Federal
Government\48\ and issued Presidential Policy Directive (PPD)
28. The President directed that the queries of telephone
metadata collected by the National Security Agency (NSA) under
Section 501 of FISA must first be approved by a judge with the
Foreign Intelligence Surveillance Court (FISC) and such queries
would be limited to two ``hops.''\49\
---------------------------------------------------------------------------
\48\Remarks by the President on Review of Signals Intelligence
(Jan. 17, 2014), available
at https://www.whitehouse.gov/the-press-office/2014/01/17/remarks-
president-review-signals-
intelligence.
\49\Id.
---------------------------------------------------------------------------
This section relies on these reforms to establish a new,
narrowly-tailored mechanism for the targeted collection of
telephone metadata for possible connections between foreign
powers or agents of foreign powers and others as part of an
authorized investigation to protect against international
terrorism. This new mechanism is the only circumstance in which
Congress contemplates the prospective, ongoing use of Section
501 of FISA in this manner.
Under this section, if the government can demonstrate a
reasonable, articulable suspicion that a specific selection
term is associated with a foreign power or an agent of a
foreign power engaged in international terrorism or activities
in preparation therefor, the FISC may issue an order for the
ongoing, daily production of call detail records held by
telephone companies. The prospective collection of call detail
records is limited to 180 days.
The government may require the production of up to two
``hops''--i.e., the call detail records associated with the
initial seed telephone number and call detail records (CDRs)
associated with the CDRs identified in an initial ``hop.''
Subparagraph (F)(iii) provides that the government can obtain
the first set of CDRs using the specific selection term
approved by the FISC. In addition, the government can use the
FISC-approved specific selection term to identify CDRs from
metadata it already lawfully possesses. Together, the CDRs
produced by the phone companies and those identified
independently by the government constitute the first ``hop.''
Under subparagraph (F)(iv), the government can then present
session identifying information or calling card numbers (which
are components of a CDR, as defined in section 107) identified
in the first ``hop'' CDRs to phone companies to serve as the
basis for companies to return the second ``hop'' of CDRs. As
with the first ``hop,'' a second ``hop'' cannot be based on,
nor return, cell site or GPS location information. It also does
not include an individual listed in a telephone contact list,
or on a personal device that uses the same wireless router as
the seed, or that has similar calling patterns as the seed. Nor
does it exist merely because a personal device has been in the
proximity of another personal device. These types of
information are not maintained by telecommunications carriers
in the normal course of business and, regardless, are
prohibited under the definition of ``call detail records.''
``Call detail records'' include ``session identifying
information (including originating or terminating telephone
number, International Mobile Subscriber Identity number, or
International Mobile Station Equipment Identity number), a
telephone calling card number, or the time or duration of a
call.'' The Act explicitly excludes from that term the contents
of any communication; the name, address, or financial
information of a subscriber or customer; and cell site location
or GPS information, and the Act should not be construed to
permit the government to obtain any of this type of information
through either of the two ``hops.''
This new authority--designed to allow the government to
search telephone metadata for possible connections to
international terrorism--does not preclude the government's use
of standard business records orders under Section 501 to compel
the production of business records, including call detail
records.
This section does not require any private entity to retain
any record or information other than in the ordinary course of
business. However, nothing in current law or this Act prohibits
the government and telecommunications providers from agreeing
voluntarily to retain records for periods longer than required
for their business purposes.
This section requires the government to adopt minimization
procedures that require the prompt destruction of call detail
records that are not foreign intelligence information.
Sec. 102--Emergency authority.
This section creates a new emergency authority in Section
501 for both standard business records orders under Section
501(b)(2)(B) and the new call detail records orders under
Section 501(b)(2)(C). The Attorney General may authorize the
emergency production of tangible things, provided that an
application for an order under Section 501 is presented to the
court within 7 days. If the court denies an emergency
application, the government may not use any of the information
obtained under the emergency authority except in instances of a
threat of death or serious bodily harm.
Sec. 103. Prohibition on bulk collection of tangible things
This section requires that each application for the
production of tangible things include ``a specific selection
term to be used as the basis for the production.'' In so doing,
the Act makes clear that the government may not engage in
indiscriminate bulk collection of any tangible thing or any
type of record under Section 501 of FISA.
Section 501(b)(2)(A) of FISA will continue to require the
government to make ``a statement of facts showing that there
are reasonable grounds to believe that the tangible things
sought are relevant to an authorized investigation. . . .''\50\
Section 103 requires the government to make an additional
showing, beyond relevance, of a specific selection term as the
basis for the production of the tangible things sought, thus
ensuring that the government cannot collect tangible things
based on the assertion that the requested collection ``is thus
relevant, because the success of [an] investigative tool
depends on bulk collection.''\51\ Congress' decision to leave
in place the ``relevance'' standard for Section 501 orders
should not be construed as Congress' intent to ratify the FISA
Court's interpretation of that term. These changes restore
meaningful limits to the ``relevance'' requirement of Section
501, consistent with the opinion of the U.S. Court of Appeals
for the Second Circuit in ACLU v. Clapper.
---------------------------------------------------------------------------
\50\50 U.S.C. Sec. 501(b)(2)(A).
\51\Amended Memorandum Opinion, In re Application of the Federal
Bureau of Investigation for an Order Requiring the Production of
Tangible Things From [redacted], No. BR 13-09 (FISA Ct. Aug. 29, 2013),
at 21 (citing Mem. of Law at 15, Docket No. BR 06-05).
---------------------------------------------------------------------------
Although this Act eliminates bulk collection, this section
maintains Section 501 as a business records authority. The
additional showing of a ``specific selection term'' that will
be required in all Section 501 applications does not provide
any new authority, but it is defined in such a way as to allow
for standard business records collection to continue while
prohibiting the use of this authority for indiscriminate, bulk
collection.
Sec. 104--Judicial review.
This section provides that the court may evaluate the
adequacy of minimization procedures under Section 501. Under
current law, the court is only empowered to determine whether
the government has minimization procedures in place. This
section also makes clear that the FISC may require additional,
particularized minimization procedures beyond those required
under Section 501 with regard to the production, retention, or
dissemination of certain business records, including requiring
the destruction of such records within a reasonable time
period. This language is intended to capture an existing
practice by the FISC to require heightened minimization
procedures when appropriate.
Sec. 105--Liability protection.
This section provides liability protections to third
parties who provide information, facilities, or technical
assistance to the government in compliance with an order issued
under Section 501. This provision mirrors the liability
provisions in Titles I and VII of FISA.
Sec. 106--Compensation for assistance.
This section explicitly permits the government to
compensate third parties for producing tangible things or
providing information, facilities, or assistance in accordance
with an order issued under Section 501. It is customary for the
government to enter into contractual agreements with third
parties in order to compensate them for products and services
provided to the government.
Sec. 107--Definitions.
This section provides definitions for the terms
``address,'' ``call detail record,'' and ``specific selection
term.'' This section also incorporates by reference to Section
101 of FISA definitions for ``foreign power,'' ``agent of a
foreign power,'' ``international terrorism,'' ``foreign
intelligence information,'' ``Attorney General,'' ``United
States person,'' ``United States,'' ``person,'' and ``State.''
The ``specific selection term'' required in each Section
501 application is the mechanism by which the Act prohibits the
indiscriminate, bulk collection of any type of tangible thing
under Section 501. The term ``specific selection term,'' for
purposes of a standard Section 501 order, is defined to mean a
term that specifically identifies a person, account, address,
or personal device, or any other specific identifier that is
used to limit, to the greatest extent reasonably practicable,
the scope of tangible things sought, consistent with the
purpose for seeking the tangible things. It does not include
terms that are not so limited, such as terms based on a broad
geographic region, such as a state, city, or zip code, (when
not used as part of a specific identifier) or terms identifying
a service provider (when not used as part of a specific
identifier) unless the provider is itself the subject of an
investigation.
This definition makes clear that the government may satisfy
the requirements of the ``specific selection term'' definition
through use of one or more terms or identifiers as may be
necessary to meet the standard set forth in the definition--and
as provided for in Section 1 of Title 1, United States Code.
For purposes of the call detail record authority, the term
``specific selection term'' is defined as a term specifically
identifying an individual, account, or personal device.
The term ``address'' means a physical address or electronic
address, such as an electronic mail address, temporarily
assigned network address, or Internet protocol address. This
definition may overlap with the term ``account,'' which also
can be considered a ``specific selection term'' under the bill.
These terms are not mutually exclusive, and an electronic mail
address or account also qualifies as an ``account'' for
purposes of the bill.
The term ``personal device'' refers to a device that can
reasonably be expected to be used by an individual or a group
of individuals affiliated with one another. For example,
``personal device'' would include a telephone used by an
individual, family, or housemates, a telephone or computer
provided by an employer to an employee or employees, a home
computer or tablet shared by a family or housemates, and a Wi-
Fi access point that is exclusively available to the
inhabitants of a home, the employees of a business, or members
of an organization. It would also include a local area network
server that is used by a business to provide e-mail to its
employees. The term ``personal device'' does not include
devices that are made available for use by the general public
or by multiple people not affiliated with one other, such as a
pay phone available to the public, a computer available to
library patrons to access the Internet, or a Wi-Fi access point
made available to all customers at an Internet cafee. Depending
on the circumstances, however, such devices could qualify as
``any other specific identifier'' that is used to limit the
scope of the tangible things sought consistent with the purpose
for seeking the tangible things. The term ``personal device''
also does not include devices that are used by companies to
direct public communications, such as a router used by an
Internet service provider to route e-mails sent by its
customers, or a switch used by a telecommunications carrier to
route calls made by its customers.
Sec. 108--Inspector General reports on business records orders.
This section requires the Inspector General of the
Department of Justice to conduct a comprehensive review of the
use of Section 501 with respect to calendar years 2012 to 2014.
It also requires the Inspector General of the Intelligence
Community to assess the value and use of intelligence obtained
under Section 501 over the same time period.
Sec. 109--Effective date.
This section provides that the new call detail records
authority, the new Section 501 emergency authority, and the
prohibition on bulk collection of tangible things under Section
501 take effect 180 days after enactment.
Sec. 110--Rule of construction.
This section provides a rule of construction that nothing
in this Act shall be construed to authorize the production of
the contents of electronic communications by electronic
communication service providers under Title V of FISA.
Title II--FISA Pen Register and Trap and Trace Device Reform
Sec. 201--Prohibition on bulk collection.
This section prohibits the use of the pen register and trap
and trace device authority for bulk collection by requiring
each application under this section to include a specific
selection term as the basis for the use of a pen register or
trap and trace device.
The definition of ``specific selection term'' is similar to
the definition of that term for Section 501 orders.
Specifically, it is defined to mean a term that specifically
identifies a person, account, address, or personal device, or
any other specific identifier that is used to limit, to the
greatest extent reasonably practicable, the scope of
information sought, consistent with the purpose for the use of
a pen register or trap and trace device. It does not include
terms that are not so limited, such as terms based on broad
geographic region (when not used as part of a specific
identifier) or terms identifying a service provider (when not
used as part of a specific identifier) unless the provider is
itself the subject of an investigation.
The term ``address'' means a physical address or electronic
address, such as an electronic mail address, temporarily
assigned network address, or Internet protocol address. This
definition may overlap with the term ``account,'' which also
can be considered a ``specific selection term'' under the bill.
These terms are not mutually exclusive, and an electronic mail
address or account also qualifies as an ``account'' for
purposes of the bill.
The term ``personal device'' refers to a device that can
reasonably be expected to be used by an individual or a group
of individuals affiliated with one another. For example,
``personal device'' would include a telephone used by an
individual, family, or housemates, a telephone or computer
provided by an employer to an employee or employees, a home
computer or tablet shared by a family or housemates, and a Wi-
Fi access point that is exclusively available to the
inhabitants of a home, the employees of a business, or members
of an organization. It would also include a local area network
server that is used by a business to provide e-mail to its
employees. The term ``personal device'' does not include
devices that are made available for use by the general public
or by multiple people not affiliated with one other, such as a
pay phone available to the public, a computer available to
library patrons to access the Internet, or a Wi-Fi access point
made available to all customers at an Internet cafee. Depending
on the circumstances, however, such devices could qualify as
``any other specific identifier'' that is used to limit the
scope of the tangible things sought consistent with the purpose
for seeking the tangible things. The term ``personal device''
also does not include devices that are used by companies to
direct public communications, such as a router used by an
Internet service provider to route e-mails sent by its
customers, or a switch used by a telecommunications carrier to
route calls made by its customers.
Sec. 202--Privacy procedures.
This section directs the Attorney General to adopt
procedures to safeguard nonpublicly available information
concerning U.S. persons consistent with the need to protect
national security. This section also makes clear that the FISC
may require additional privacy or minimization procedures with
regard to the installation or use of a pen register or trap and
trace device.
Title III--FISA Acquisitions Targeting Persons outside the
United States Reforms
Sec. 301--Limits on use of unlawfully obtained information.
This section limits the government's use of information
about U.S. persons that is obtained under Section 702
procedures that the FISA Court later determines to be unlawful,
while still giving the FISA Court flexibility to allow such
information to be used in appropriate cases. It is similar to
the existing law that limits the use of information collected
pursuant to FISA's emergency authority if the FISA Court
determines after the fact that the FISA standard was not met.
Title IV--Foreign Intelligence Surveillance Court Reforms
Sec. 401--Appointment of amicus curiae.
This section provides that both the FISC and the FISA Court
of Review (FISCR) shall, if deemed appropriate, appoint an
individual to serve as amicus curiae in a case involving a
novel or significant interpretation of law. In addition, this
section permits the court to appoint amicus curiae in any case
or permit an individual or organization leave to file as amicus
curiae.
The presiding judges of the courts will jointly designate a
panel of no fewer than five individuals who are eligible to
serve as amicus curiae. In designating such individuals, the
presiding judges may consider individuals recommended from any
source, including members of the Privacy and Civil Liberties
Oversight Board, that the judges deem appropriate. These
individuals shall possess expertise in privacy and civil
liberties, intelligence collection, communications technology,
or any other area of law that may lend legal or technical
expertise to the courts, and shall be eligible for access to
classified information necessary to participate as amicus
curiae.
A novel or significant interpretation of law involves
application of settled law to novel technologies or
circumstances materially different from those in prior cases,
or any other novel or significant construction or
interpretation of any provision of law or of the U.S.
Constitution. It is not intended to include routine, fact-based
FISA applications that do not present novel legal or
technological issues. An instance in which it may apply,
however, is to novel and significant interpretations of
``specific selection term.''
The duties of an amicus curiae may include, as appropriate,
legal arguments that advance the protection of individual
privacy and civil liberties, information related to
intelligence collection or communications technology, or legal
arguments or information regarding any other area relevant to
the issue presented to the FISC or FISCR.
An individual appointed as an amicus curiae by the FISC or
FISCR may request appointment of additional amicus curiae, have
access to all relevant legal precedent and any application,
certification, petition, motion or such other materials that
the court determines are relevant to the duties of an amicus
curiae, and have access to classified materials to the extent
consistent with national security. This section excludes access
to privileged materials and makes clear that the authorization
for the appointment of amicus curiae does not affect the
ability of the courts to continue to receive information or
materials from, or otherwise communicate with, the government
or amicus curiae on an ex parte basis.
The Attorney General may brief individuals designated as
amicus curiae regarding constructions or legal interpretations
of FISA, and legal, technological, and other issues related to
actions authorized by FISA. The FISC or FISCR must notify the
Attorney General when it appoints an individual to serve as
amicus curiae and may seek the assistance of the Executive
Branch in implementation of this authority. The courts may
provide for the designation, appointment, removal, training, or
other support for amicus curiae.
This section also authorizes the FISC, in the judge's
discretion and following issuance of a FISA order, to certify a
question of law to the FISCR if such question of law may affect
the resolution of the matter in controversy because of a need
for uniformity or to serve the interests of justice. This
section also permits the FISCR to certify questions of law to
the U.S. Supreme Court and authorizes the Supreme Court to
appoint an individual to serve as amicus curiae from among
those designated by the FISC and FISCR under this section. This
provision is based upon and conforms to existing procedures for
certified questions of law from the Federal courts of appeals
to the U.S. Supreme Court in Section 1254(2) of Title 28,
United States Code.
Sec. 402--Declassification of decisions, orders, and opinions.
This section requires the Attorney General to conduct a
declassification review of each decision, order, or opinion of
the FISC or FISCR that includes a significant construction or
interpretation of law. In the interest of national security,
the Director of National Intelligence (DNI) may waive the
declassification requirement, in which case the Attorney
General shall provide a public summary of the decision. The
Attorney General is instructed to summarize significant
constructions or interpretations of law which shall include, to
the extent consistent with national security, a description of
the context in which the matter arises and any significant
construction or interpretation of any statute, constitutional
provision, or other legal authority relied on by the FISC. Any
such summary would not be considered to be part of the court's
opinion.
Title V--National Security Letter Reform
Sec. 501--Prohibition on bulk collection.
This section prohibits the use of various national security
letter (NSL) authorities (contained in the Electronic
Communications Privacy Act, Right to Financial Privacy Act, and
Fair Credit Reporting Act) without the use of a specific
selection term as the basis for the NSL request. It specifies
that for each NSL authority, the government must specifically
identify the target or account.
While the overall objective is the same, each of the NSL
authorities is amended with slightly different language in
order to account for differences in the underlying statutes.
For example, Section 501(a) amends the Electronic
Communications Privacy Act to require ``a term that
specifically identifies a person, entity, telephone number, or
account,'' while Section 501(b) amends the Right to Financial
Privacy Act to require ``a term that specifically identifies a
customer, entity, or account.'' These differences in amendments
to the NSL authorities simply conform the new language to the
original statutory structure.
Sec. 502--Limitations on Disclosure of National Security Letters.
This section corrects the constitutional defects in the
issuance of NSL nondisclosure orders found by the Second
Circuit Court of Appeals in Doe v. Mukasey, 549 F.3d 861 (2d
Cir. 2008), and adopts the concepts suggested by that court for
a constitutionally sound process.
It permits the government to impose a nondisclosure order
on the recipient of an NSL if a senior FBI official certifies
that danger to the national security, interference with an
investigation, interference with diplomatic security, or danger
to the life or safety of a person may result from public
disclosure of the order. It also permits disclosure to persons
to whom disclosure is necessary to comply with the NSL; an
attorney; or others as permitted by the FBI.
This section allows the recipient of an NSL nondisclosure
order to challenge the nondisclosure order by notifying the
government or by filing a petition for judicial review. If the
recipient notifies the government, the government then has 30
days to seek a court order in Federal district court to compel
compliance with the nondisclosure order. This option is
intended to ease the burden on the recipient in challenging the
nondisclosure order. If the court determines there is reason to
believe that certain harms may result if the gag order is not
imposed, the court shall issue the nondisclosure order.
This section repeals a provision stating that a conclusive
presumption in favor of the government shall apply where a
high-level official certifies that disclosure of the NSL would
endanger national security or interfere with diplomatic
relations.
This section also provides that the Attorney General shall
adopt procedures for the review of nondisclosure requirements
issued pursuant to an NSL. These procedures require the
government to review at appropriate intervals whether the facts
supporting nondisclosure continue to exist; the termination of
such nondisclosure requirement if the facts no longer support
nondisclosure; and appropriate notice to the recipient of the
NSL, and the applicable court as appropriate, when the
nondisclosure requirement has been terminated. These procedures
are based upon nondisclosure reforms proposed by President
Obama in January 2014. In remarks accompanying the issuance of
PPD-28, President Obama directed the Attorney General ``to
amend how we use National Security Letters so that [their]
secrecy will not be indefinite, and will terminate within a
fixed time unless the government demonstrates a real need for
further secrecy.''\52\
---------------------------------------------------------------------------
\52\Remarks by the President on Review of Signals Intelligence
(Jan. 17, 2014), available at https://www.whitehouse.gov/the-press-
office/2014/01/17/remarks-president-review-signals-intelligence.
---------------------------------------------------------------------------
In January 2015, as part of its Signals Intelligence Reform
2015 Anniversary Report, the Director of National Intelligence
announced that:
In response to the President's new direction, the FBI
will now presumptively terminate National Security
Letter nondisclosure orders at the earlier of 3 years
after the opening of a fully predicated investigation
or the investigation's close. Continued nondisclosures
orders beyond this period are permitted only if a
Special Agent in Charge or a Deputy Assistant Director
determines that the statutory standards for
nondisclosure continue to be satisfied and that the
case agent has justified, in writing, why continued
nondisclosure is appropriate.
Sec. 503--Judicial Review.
This section modifies each of the national security letter
statutes to specify that judicial review of NSLs and NSL
nondisclosure orders is governed by 18 U.S.C. Sec. 3511, and
that each NSL issued shall notify the recipient of the
availability of judicial review of the NSL itself, as well as
the nondisclosure order.
Title VI--FISA Transparency and Reporting Requirements
Sec. 601--Additional Reporting on Orders Requiring Production of
Business Records; Business Records Compliance Reports to
Congress.
In addition to existing annual reporting requirements, this
section requires the government to provide to Congress a
summary of all compliance reports related to the use of Section
501. It also requires the government to report on the number of
applications made for call detail records under the new call
detail record authority and the number of orders granted,
modified or denied, as well as the number of standard Section
501 applications and orders granted, modified, or denied. It
further requires the government to report on the number of
Section 501 applications based on a specific selection term
that does not specifically identify an individual, account or
personal device; the number of those applications granted,
modified, or denied; and for those applications that were
granted or modified, whether the FISA Court adopted additional,
particularized minimization procedures.
Sec. 602--Annual Reports by the Government.
This section requires the Administrative Office of the U.S.
Courts to report to Congress annually the number of FISA orders
and certifications applied for, issued, modified, and denied,
and the number of appointments by the FISA Court of amici
curiae under section 103. This information must also be posted
on a public website, subject to a declassification review. The
Administrative Office must also report to Congress the
instances in which the FISC issued a finding that appointment
of amicus curiae was not appropriate and the text of such
findings.
This section also requires the government to report
annually to the public key information about the scope of
collection under the FISA pen register, business records, call
detail records, and Section 702 authorities, as well as the
national security letter statutes. For FISA pen register,
business records, and call detail records, the government must
annually report a good faith estimate of the number of targets
of these orders, and the number of unique identifiers collected
pursuant to those orders. The phrase ``unique identifiers used
to communicate information collected pursuant to such orders''
means the total number of, for example, email addresses or
phone numbers that have been collected as a result of these
particular types of FISA orders--not just the number of target
email addresses or telephone numbers.
For Section 702 collection, the government must report the
number of orders, the number of search terms concerning known
U.S. persons used to retrieve unminimized contents of wire or
electronic communications acquired under Section, and the
number of queries concerning known U.S. persons of unminimized
noncontents information acquired under Section 702. This
requirement is consistent with how the Intelligence Community
counted these figures for purposes of a June 27, 2014, letter
from the Office of the Director of National Intelligence to
Senator Wyden.
For national security letters, the government must annually
report the number of letters issued, the number of requests for
information in those letters, and a good faith estimate of the
number of requests concerning U.S. persons and non-U.S.
persons.
This section has limited exceptions. The FBI is exempted
from reporting requirements that the agency has indicated it
lacks the capacity to provide. Additionally, while the
government is required to estimate the number of known U.S.
person queries of non-contents information collected under
Section 702, if the Director of National Intelligence
determines that these estimates cannot be determined accurately
because some but not all relevant elements can comply, the
Director must report the estimate for those elements able to
comply, and provide a public, unclassified certification to the
Senate and House Intelligence and Judiciary Committees each
year explaining why the Intelligence Community is unable to
report these figures and when it is reasonably anticipated that
such an estimate can be determined fully and accurately.
Finally, this section requires annual reporting on the
number of accounts from which the Department of Justice
receives voluntary disclosures in an emergency for non-content
information.
Sec. 603--Public Reporting by Persons Subject to FISA Orders.
Companies subject to FISA orders or National Security
Letters (NSLs) may publicly report information about the number
of such orders or NSLs they receive and how many of their
customers are targeted by these national security processes.
This provision is modeled on the January 2014 settlement
between various technology companies and the Justice
Department, which allowed for companies to publicly report data
concerning government requests for customer information. This
provision is intended to capture reporting by companies as it
was agreed to in the settlement.
The bill provides four options for this reporting: (1) a
semiannual report on the number of NSLs, FISA content orders
and FISA non-content orders in bands of 1000, with some
breakdowns by authority for non-content information; (2) a
semiannual report on the number of NSLs, FISA content orders
and FISA non-content orders in bands of 500; (3) a semiannual
report on the total national security process received in bands
of 250; or (4) an annual report on the total national security
process received in bands of 100. For the options permitting
disclosures in bands of 500 and 1000, providers must wait 18
months before reporting on any FISA orders or directives
received with respect to a platform, product, or service for
which the provider has not previously received an order or
directive. It is anticipated that companies may have a
necessary delay between the end of certain reporting periods
required under this section and the date a report may be issued
by a company pursuant to this section.
By permitting companies to report the number of ``customer
selectors targeted'' for each of the relevant authorities, this
provision is intended to capture circumstances in which the
government asks the company for information about a single
identifier or selector, but the company returns multiple
accounts associated with that identifier or selector, or the
reverse situation where multiple identifiers or selectors are
tied to a single account. In such a circumstance, the company
is permitted to report the total number of accounts returned
based on the identifiers and selectors specified in the
government request, because all of those accounts have been
targeted by the government's process.
Sec. 604--Reporting Requirements for Decisions, Orders, and Opinions of
the Foreign Intelligence Surveillance Court and the Foreign
Intelligence Surveillance Court of Review.
This section requires the Attorney General to provide a
copy of each decision, order, or opinion, including a
modification or denial of an application that includes a
significant construction or interpretation of any provision of
law to the relevant committees, within 45 days.
Sec. 605--Submission of reports under FISA.
This section includes the House Judiciary Committee in
several existing reporting requirements.
Title VII--Enhanced National Security Provisions
Sec. 701--Emergencies Involving Non-United States Persons.
This section provides for the lawful targeting of a non-
United States person who was previously believed to be located
outside the United States for a period not to exceed 72 hours
when it is determined that the non-United States person is
reasonably believed to be located inside the United States, in
certain limited circumstances. Among other requirements, the
head of an element of the Intelligence Community must
reasonably determine that a lapse in targeting such non-United
States person poses a threat of death or serious bodily harm.
This provision should not be construed as creating broad
new surveillance authorities. Rather, the purpose of this
section is to allow the intelligence community to continue to
target a non-United States person, in certain narrowly limited
circumstances, for up to 72 hours after that person is
reasonably believed to be located inside the United States, to
provide time to compile the information needed to ask the
Attorney General to approve emergency FISA authority under
Title I or Title III of FISA. If the Attorney General does not
approve an emergency authority, or if the FISA Court turns down
a subsequent application, the information acquired during the
72-hour period must be purged unless it indicates a threat of
death or serious bodily harm. This section also provides for a
semiannual report to Congress of the total number of
authorizations under this section along with the number of
accompanying subsequent emergency employments of electronic
surveillance under FISA.
Sec. 702--Preservation of treatment of non-United States persons
travelling outside United States as agents of foreign powers.
This section addresses an anomaly in FISA that has been
interpreted to require the government to terminate electronic
surveillance under Title I of FISA or terminate physical search
under Title III of FISA because a non-U.S. person, who is known
to be acting inside the U.S. as an agent of a foreign power,
exits the United States.
As currently written, subparagraphs (A) and B) of section
101(b)(1) of FISA require that a non-U.S. person who is an
officer or employee of a foreign power or acts on behalf of a
foreign power engaging in clandestine intelligence activities
must be acting in the United States in one of those capacities
in order to be considered an agent of the foreign power for
purposes of Title I and Title III of FISA. As a result of these
definitions, in certain circumstances, the government must
terminate electronic surveillance or physical search pursuant
to Titles I and III of FISA because the target has left the
United States or may not be able to initiate Title I electronic
surveillance and Title III physical searches until the target
enters the United States. Although collection on such
individuals overseas may be permitted under authorities other
than Titles I and III, this section revises the definitions of
subparagraphs (A) and (B) of section 101(b)(1) of FISA to
permit the government to conduct Title I electronic
surveillance and Title III physical searches targeting certain
individuals regardless of whether they are physically located
in the United States or abroad.
The revisions of subparagraphs (A) and (B) of section
101(b)(1) are not intended to alter the definition of
electronic surveillance under FISA. The revisions are solely
intended to afford the government the operational flexibility
to initiate and maintain Title I electronic surveillance or
Title III physical search authorities in the above
circumstances.
Sec. 703--Improving investigations of international proliferation of
weapons of mass destruction.
This section amends the definition of ``agent of a foreign
power'' in Section 101(b)(1)(E) of FISA, pertaining to the
international proliferation of weapons of mass destruction, to
include those who knowingly aid and abet, or knowingly conspire
with, persons engaged in such proliferation or activities in
furtherance of such proliferation on behalf of a foreign power.
This amendment, which is applicable only to non-U.S. persons,
is intended to ensure that those who facilitate the
international proliferation of weapons of mass destruction on
behalf of a foreign power by knowingly procuring or selling
components or ancillary materials for the purpose of
constructing weapons of mass destruction may be targeted under
FISA.
Sec. 704--Increase in penalties for material support of foreign
terrorist organizations.
This section increases the statutory maximum penalty from
15 to 20 years for material support of designated foreign
terrorist organizations.
Sec. 705--Sunsets.
This section reauthorizes Section 215 (business records)
and Section 206 (roving wiretap authority) of the PATRIOT Act
and Section 6001 (lone wolf definition) of the Intelligence
Reform and Terrorism Prevention Act of 2004 to December 15,
2019.
Title VIII--Safety of Maritime Navigation and Nuclear Terrorism
Conventions Implementation
Subtitle A--Safety of Maritime Navigation
These amendments implement the changes to 18 U.S.C.
Sec. 2280 required by the 2005 Protocol to the 1988 Convention
for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation (``2005 Protocol'') and the changes to 18
U.S.C. Sec. 2281 required by the 2005 Protocol to the 1988
Protocol for the Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on the Continental Shelf
(``2005 Platforms Protocol'').
Sec. 801--Amendment to section 2280 of title 18, United States Code.
This section amends Section 2280, Violence Against Maritime
Navigation in subsection (1)(A)(i) by expanding jurisdiction
over prohibited activity against U.S. ships to include not just
those flying the flag of the United States, but also ``a vessel
of the United States or a vessel subject to the jurisdiction of
the United States.'' In (b)(1)(A)ii jurisdiction is expanded by
adding ``including the territorial seas.'' The current statute
just refers to ``in the United States.''
In (b)(1)(A)(iii) jurisdiction over prohibited activities
against maritime navigation by including activity committed by
a United States corporation or legal entity, in addition to the
current language giving jurisdiction over a national of the
United States or by a stateless person whose habitual residence
is the United States. In subsection (c) a correction is made to
an error in the cross-reference to the Norris-LaGuardia Act by
substituting ``section 13 (c) for the current 2 (c)'' of that
Act.
The current subsection (d) relating to the delivery of a
suspected offender is updated and moved to (f). The new
subsection (d) identifies nine applicable treaties and contains
the existing definitions for Section 2280 as well as the
definitions for some new terms utilized by the 2005 Protocol.
Terms defined include biological weapon, chemical weapon,
explosive material, and infrastructure facility, among others.
It also updates the definitional sections by adding a
definition of ``international organization,'' to be consistent
with 18 U.S.C. Sec. 831. This subsection also adopts the
definition of ``military forces of a state'' used in the 2005
Protocol. Consistent with the understanding included in the
instrument of ratification for the 2005 Protocols, the
exemption provided by this bill to subsection(e)(2) of Section
2280, includes civilians who direct or organize the official
activities of military forces of a State. Subsection (e) of
2280 creates an exception for the activities of armed forces
during an armed conflict, as those terms are understood under
the law of war and for activities undertaken by military forces
of a state in the exercise of their official duties.
Subsection (f) updates the grounds permitting the master of
a ship to deliver an offender to another state, under certain
conditions, to include the new offenses added by these
amendments. It provides authority for the master of a covered
ship flying the flag of the United States, who has reasonable
grounds to believe a person on board has committed an offense
under 18 U.S.C. 2280 or 2280a, to deliver that person to the
authorities of a country that is a party to the Convention for
the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation. This change is required under the 2005 Protocol,
Article 8 as amended.
Subsection (g) establishes a Civil Forfeiture provisions
against any real or personal property used or intended for use
in committing violations under section 2280. This would include
gross proceeds of such violations, and real or personal
property traceable to such property or proceeds. These
forfeitures are governed by the provisions of chapter 46 of
Title 18, but may also be performed by agents or officers
designated by the Secretary of homeland Security, the Attorney
General, or the Secretary of Defense.
Sec. 802--New section 2280A of title 18, United States Code.
This section establishes a new section 2280a to Title 18.
The 2005 Protocol forbids enumerated maritime terrorism acts
and the maritime transport of biological, chemical, or nuclear
weapons (``BCN weapons'') or certain of their components,
delivery means, or materials, under specified circumstances.
The 2005 Protocol also forbids the maritime transport of
terrorist fugitives. The 2005 Protocol does not affect the
rights or obligations of parties under the Treaty on the Non-
Proliferation of Nuclear Weapons, the Convention on the
Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their
Destruction, or the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical
Weapons and on their Destruction. There are exceptions for
armed forces and military actions in accordance with the 2005
Protocol, Article 2bis, paragraph 2.
Subsection (a)(1)(A) implements paragraph 1(a)(i), (ii),
and (iii) of Article 3bis of the 2005 Protocol. Under these
provisions, it is an offense to, unlawfully and with the intent
to intimidate a population or compel a government or an
international organization to do or refrain from doing an act,
(i) use against or on, or discharge from, a ship any explosive
or radioactive material, or BCN weapon, in a manner that causes
or is likely to cause death or serious injury or damage; (ii)
discharge from a ship oil, liquefied natural gas, or another
hazardous or noxious substance, in a manner that causes or is
likely to cause death or serious injury or damage; or (iii)
otherwise use a ship in a manner that causes death or serious
injury or damage.
Subsection (a)(1)(B) implements paragraphs 1(b) and 2 of
Article 3bis. Subsection (a)(1)(B)(i) forbids the transport of
explosive or radioactive material intended for a terrorist act.
Subsection (a)(1)(B)(ii) forbids the transport of BCN weapons.
Subsection (a)(1)(B)(iii) forbids the transport of source or
special fissionable material or equipment or material
especially designed or prepared for the processing, use, or
production of special fissionable material where intended for
use in a nuclear explosive activity or in any other nuclear
activity not under safeguards pursuant to an International
Atomic Energy Agency comprehensive safeguards agreement (except
where not contrary to obligations of parties to the Treaty on
the Non-Proliferation of Nuclear Weapons (``NPT'')). For
example, transport would be permitted if no safeguards are
required, as in the case of a Nuclear Weapon State Party
recipient, or if an NPT State Party sends such materials or
equipment to a country that is not an NPT State Party for use
in an activity under ``facility-specific'' International Atomic
Energy Agency (``IAEA'') safeguards. At the same time,
transport, even by an NPT State Party to a country that is not
an NPT State Party, would be forbidden if the resulting
transfer violated the NPT party's obligations under the NPT.
For example, the obligations of NPT States Parties under the
NPT include, among other things, the obligation not to provide
source or special fissionable material or equipment or material
especially designed or prepared for the processing, use, or
production of special fissionable material to any non-nuclear
weapon state for peaceful purposes, unless the source or
special fissionable material is subject to IAEA safeguards.
Subsections (a)(1)(B)(iv)-(vi) forbid transport of certain
dual use items that will significantly contribute to and are
intended for the design or manufacture of a BCN weapon or its
means of delivery. Subparagraph (B) reflects the conduct
forbidden by paragraphs 1(b) of Article 3bis as well as the
savings provision of paragraph 2 of Article 3bis but is
reorganized to provide a clearer exposition of the exceptions
applicable to each category of forbidden conduct. The offenses
prohibited are consistent with the obligations under the Treaty
on the Non-Proliferation of Nuclear Weapons and complementary
with the obligations set out in U.N. Security Council
Resolution 1540 regarding prohibitions against the transport of
BCN weapons.
Subsection (a)(1)(C) implements Article 3ter of the 2005
Protocol to prohibit the transportation of a terrorist fugitive
(i.e., perpetrators of an act prohibited under the amended SUA
or one of nine other UN terrorism conventions), with the intent
to help the fugitive evade prosecution.
Subsections (a)(1)(D) and (E) add provisions regarding
conspiracy, attempt, and injury or death in connection with one
of the listed offenses. The amendments reflect the amendments
in the 2005 Protocol (see Article 3quater). It should be noted
that the current provisions found in 18 U.S.C. Sec. Sec. 2,
371, and 2339A, and the conspiracy offenses in Section 2280,
implement the obligations under subparagraphs (c), (d), and (e)
of Article 3quater of the 2005 Protocol.
Subsection (a)(2) criminalizing threats is updated to
implement the 2005 Protocol's requirement to criminalize
threats to commit the terrorism-related offenses described in
subparagraph (G) (see 2005 Protocol, Article 3bis, paragraph
(1)(a)(iv)).
Subsection (b) establishes jurisdiction over prohibited
activity consistent with that found in 18 U.S.C. 2280.
Subsection (c) of inserts exceptions (as does Section 801
supra) specifying that the statute does not apply to armed
forces during an armed conflict or to the official exercise of
military duties, as specified in Article 2bis of the 2005
Protocol.
Subsection (d) establishes a Civil Forfeiture provisions
against any real or personal property used or intended for use
in committing violations under section 2280. This would include
gross proceeds of such violations, and real or personal
property traceable to such property or proceeds. These
forfeitures are governed by the provisions of chapter 46 of
Title 18, but may also be performed by agents or officers
designated by the Secretary of homeland Security, the Attorney
General, or the Secretary of Defense.
The penalties for violations of 18 U.S.C. 2280a are a fine,
imprisonment for not more than 20 years, or both. If the death
of any person results from prohibited conduct under this new
section, the punishment is imprisonment for any term of years
or life (this does not have the death penalty provision
contained in Section 2280).
Sec. 803--Amendments to section 2281 of title 18, United States Code.
This section makes amendments to Section 2281 of Title 18,
United States Code. It corrects an error in subsection (c) in
the cross-reference to the Norris-LaGuardia Act by substituting
``section 13 (c) for the current 2 (c)'' of that Act. This
section strikes the definitions found in subsection (d), of
``national of the United States,'' ``territorial sea of the
United States,'' and ``United States.''
This section adds a new subsection (e) that creates an
exception to the provisions of the section for the activities
of armed forces during an armed conflict as those terms are
understood under the law of war. This exception is identical to
that found in other sections of this Act.
Sec. 804--New section 2281A of title 18, United States Code.
This section establishes a new section 2281a in Title 18
that implements requirements in accordance with the 2005
Platforms Protocol. The 2005 Platforms Protocol criminalizes
terrorist acts involving a fixed maritime platform.
New subsection (a)(1)(A) makes it an offense to, unlawfully
and with the intent to intimidate a population or compel a
government or an international organization to do or refrain
from doing an act, (i) use against or discharge from a fixed
platform, any explosive or radioactive material, or biological,
chemical, or nuclear weapon, in a manner that causes or is
likely to cause death or serious injury or damage; or (ii)
discharge from a fixed platform oil, liquefied natural gas, or
another hazardous or noxious substance, in a manner that causes
or is likely to cause death or serious injury or damage.
Subsection (a)(1)(B) extends the penalties for injuring or
killing a person in connection with the commission of an
enumerated offense to the new crimes in subparagraph (E), as
required by the 2005 Platforms Protocol, Article 2ter,
paragraph 1.
Subsections (a)(1)(C) and (a)(2) implement the 2005
Platforms Protocol's application of attempt, conspiracy, and
threat provisions to the new terrorist crimes. (See 2005
Platforms Protocol, Articles 2bis, 2ter).
Subsection (b) establishes jurisdiction over the prohibited
activity, identical to the jurisdictional requirements of 2281.
Subsection (c) establishes exceptions that the statute does
not apply to armed forces during an armed conflict or to the
official exercise of military duties, as specified in Article
2bis of the 2005 Platforms Protocol.
Subsection (d) adds definitions of ``continental shelf''
and ``fixed platform'' that are not included in 18 U.S.C.
Sec. 2280.
The penalties for violations of 18 U.S.C. 2281a are a fine,
imprisonment for not more than 20 years, or both. If the death
of any person results from prohibited conduct under this new
section, the punishment is imprisonment for any term of years
or life (this does not have the death penalty provision
contained in Section 2281).
Sec. 805--Ancillary Measure.
This section amends the meaning of the term ``Federal Crime
of Terrorism'' to include violations of the new section 2280a
and 2281a, created by sections 802 and 804 of this Act.
Subtitle B--Prevention of Nuclear Terrorism
Sec. 811--New Section 2332i of Title 18 of the U.S. Code.
This section creates a new section in the U.S. Code in
Chapter 113B, Terrorism, of Title 18, to implement certain
provisions of the International Convention for the Suppression
of Acts of Nuclear Terrorism (``NTC'') and the amendment to the
Convention on the Physical Protection of Nuclear Material
(``CPPNM''). Some of the conduct prohibited by the treaties is
already covered by existing provisions in the U.S. Code. For
instance, the NTC's prohibition against the possession or use
of a nuclear explosive or radiation dispersal device with the
intent to cause death or serious bodily injury may be covered
by 18 U.S.C. Sec. 832(c) (prohibiting the unlawful possession
or use of a ``radiological weapon'') and/or 18 U.S.C.
Sec. 2332h (prohibiting the unlawful possession or use of a
``weapon'' or ``device'' designed to release radiation).
Similarly, the prohibitions contained in both the NTC and the
amendment to the CPPNM against causing damage to a nuclear
facility overlap with 42 U.S.C. Sec. 2284, which prohibits
sabotage of nuclear facilities. The CPPNM amendment was also
largely anticipated in the existing 18 U.S.C. Sec. 831, which
implemented the original CPPNM as well as additional
prohibitions regarding nuclear material. However, the existing
statutory coverage is not entirely coextensive with the
offenses set forth in the new treaties. For example, the
possession of radioactive material other than nuclear material,
or threatening to cause damage to a nuclear facility, with the
intent to cause death or serious bodily injury, damage to
property or the environment, or to compel a person,
international organization, or country to do or refrain from
doing such an act, may not be prohibited by existing law.
Section 2332i(a) would therefore implement the provisions
in Articles 2 and 5(a) of the NTC by creating two new criminal
offenses regarding the possession and use of radioactive
material, along with criminalizing, as required by the two
treaties, attempts, threats, and conspiracies to commit the
offenses. The provisions on damaging or interfering with a
nuclear facility would also implement the CPPNM amendment's
provision on nuclear facility sabotage. While nuclear facility
sabotage is also addressed at 42 U.S.C. Sec. 2284, that statute
does not include a jurisdictional provision for offenders
``found in'' the United States and thus would not fully
implement the obligations of the CPPNM amendment.
Specifically, section 2332i(a)(1)(A) would make it a
criminal offense to knowingly possess radioactive material or
make or possess a nuclear explosive, radiation exposure device
or radiological dispersal device, with the intent to cause
death or serious bodily injury or substantial damage to
property or the environment. Section 2332i(a)(1)(B) would make
it a criminal offense to knowingly use radioactive material or
a nuclear explosive or radiological dispersal device or
radiation exposure device, or damage or interfere with a
nuclear facility in a manner that risks or causes contamination
or exposure to radioactive material or radiation, with the
intent to cause death or serious bodily injury or substantial
damage to property or the environment, or with the knowledge
that such effect is likely. With respect to this offense, the
acts may also constitute offenses if they are done with the
intent to compel a person, international organization, or state
to do or refrain from doing an act. These offenses implement
the NTC Article 2(1) and the acts of sabotage described in the
amendment to Article 7 of the CPPNM. The CPPNM amendment also
includes a specific exception for such sabotage acts
``undertaken in conformity with the national law of the State
Party in the territory of which the nuclear facility is
situated.'' Such an exception would protect, for example, first
responders but is not necessary in domestic law because the
statute only criminalizes unlawful activity. Moreover, the
government would not prosecute first responders for acts within
their official duties in responding to an incident.
Section 2332i(a)(2) would criminalize a threat to commit
either offense in subsection (a)(1) and a demand for possession
of or access to radioactive material, a nuclear explosive, or a
radiological dispersal device or a radiation exposure device or
a nuclear facility by means of a threat or use of force. This
language implements Article 2(2) of the NTC, with slightly
different but equivalent language for purposes of U.S. law. It
also implements the threat provision of the CPPNM amendment as
applied to nuclear facility sabotage. Threats to commit the
other acts identified in the CPPNM amendment are criminalized
at 18 U.S.C. Sec. 831.
Section 2332i(a)(3) would criminalize attempts to commit
the offenses in subsection (a)(1) and conspiracies to commit
the offenses in subsections (a)(1) and (a)(2). This language
implements Article 2(3) and 2(4) of the NTC, as well as the
amendment to Article 7 of the CPPNM as it pertains to sabotage
attempts and participation. Attempts to threaten are not
included in the NTC and therefore not included in the
legislation. The NTC and CPPNM amendment do include the offense
of ``participation'' in an attempt, but the legislation does
not criminalize conspiracy to attempt since the crime does not
have an analogue in U.S. law. Statutory provisions for
conspiracy and attempt, as well as aiding and abetting
liability through 18 U.S.C. Sec. 2, are sufficient to implement
the conventions' provisions on attempt and participation.
Section 2332i(b) would create jurisdiction for the offenses
in subsection (a). Article 9 of the NTC and Article 8 of the
CPPNM require jurisdiction over offenses occurring on the
territory of a signatory, on board vessels flying the flag of a
signatory, and on aircraft registered in a signatory, and over
offenses committed by nationals of a signatory. Subsections
(b)(1), (b)(2)(A), and (b)(2)(B) implement these jurisdictional
grounds in the new legislation and include the special aircraft
jurisdiction of the United States. The statute uses the term
``vessel of the United States'' and ``vessel subject to the
jurisdiction of the United States'' (both terms defined in 46
U.S.C. Sec. 70502) to define jurisdiction over vessels. The
treaties also require that a State Party establish jurisdiction
over the offenses in cases where the alleged offender is
present in its territory and it does not extradite that person
to a State Party that has implemented procedures in compliance
with the treaties. Accordingly, the statute includes in
subsection (b)(4) jurisdiction if an offender is found in the
United States. The NTC also permits jurisdiction in a number of
other cases, which this legislation adopts. There is
jurisdiction over offenses committed against a U.S. national
abroad; by a stateless person whose habitual residence is in
the United States; against state or government facilities
abroad; or in an attempt to compel the United States to do or
abstain from doing any act.
In most respects, the adoption of these bases of
jurisdiction parallels those in 18 U.S.C. Sec. 831, which
implements the United States' obligations under the CPPNM.
There are nevertheless a few differences. First, 18 U.S.C.
Sec. 831 includes jurisdiction based on import or export
activities, in accordance with the CPPNM. This jurisdictional
basis, however, is not included in the NTC and therefore not
included in section 2332i.
Section 2332i(c) would impose penalties for the commission
of the offenses in subsection (a), in accordance with the
obligation under Article 5(b) of the NTC and Article 7 of the
CPPNM. The penalties prescribed here are a fine of not more
than $2,000,000 and imprisonment for any term of years or life.
Section 2332i(d) deals with nonapplicability. Article 4(2)
of the NTC and the amendment to Article 2 of the CPPNM specify
that activities of armed forces are not covered by the
conventions. The statutory exemption in section 2332i(d)
implements this exception. The statute draws on the definition
of ``military forces of a state'' used in the Nuclear Terrorism
Convention, Paragraph 6 of Article I. Consistent with the
understandings included in the instruments of ratification for
both the NTC and CPNNM (Treaty Doc. 110-4 at IX and Treaty Doc.
110-6 at 7) and with the Administration's interpretation of 18
U.S.C. 2332f, the exemption in section 2332i(d) is understood
to include civilians who direct or organize the official
activities of military forces of a State.
Section 2332i(e) defines relevant terms in the section,
most importantly, ``radioactive material,'' ``nuclear
material,'' ``nuclear facility,'' and ``device.'' The
definitions of ``radioactive material'' and ``device'' are
adopted directly from the NTC. The definition of ``nuclear
material'' is adopted from existing section 831(f) in order to
provide consistency among the statutes. It is slightly broader
than the definition in the CPPNM or the NTC because it covers
all plutonium, rather than ``plutonium, except that with
isotopic concentration exceeding 80 percent in plutonium-238.''
When amending section 831 in 1996, Congress expanded the
definition in that statute beyond the CPPNM definition in order
to address other hazardous materials that might be used in
radioactive dispersal devices or in other terrorist activity.
The definition of ``nuclear facility'' is adopted partly
from the NTC, in subsections (e)(6)(A) and (e)(6)(B), and
partly, in subsection (e)(6)(C), from the definition of the
same term in the CPPNM amendment because the statute covers
offenses from both conventions involving nuclear facilities. A
nuclear facility would include a nuclear reactor or plant used
for nuclear material, as well as a conveyance for radioactive
material. It would also include facilities that use nuclear
material, provided that damage to or interference with the
facility could lead to a significant release of radiation or
radioactive material.
Sec. 812--Amendment to Section 831 of Title 18 of the U.S. Code.
Section 831 is amended to implement certain provisions of
the CPPNM amendment. New subsection (a)(3) would criminalize
the additional acts of nuclear smuggling required to be
prohibited under the CPPNM amendment As with the other offenses
in section 831, since 1996, slightly more material would be
covered in the statute than in the treaty: section 831 includes
``nuclear byproduct material'' where the CPPNM does not, and
section 831, as explained above, has a somewhat broader
definition of nuclear material than the CPPNM. Congress's
findings in 1996 supported this expansion.
Renumbered subsection (a)(8) retains the previous attempt
offenses and adds an attempt offense with respect to the new
smuggling offense (new subsection (a)(3)), consistent with the
CPPNM amendment. Renumbered subsection (a)(9) would include
conspiracies to commit the substantive offenses criminalized in
the statute, as required by the CPPNM and its amendment.
The jurisdictional provisions in subsection (c) would be
expanded to include some of the grounds listed in the new
section 2332i to promote consistency in the implementation of
these two conventions and the full assertion of permissible
authority over potential nuclear material offenses. The
amendment would add, consistent with section 2332i,
jurisdiction over offenses committed by stateless persons with
their habitual residence in the United States. It would also
extend jurisdiction over offenses against state or government
facilities abroad and offenses committed on board an aircraft
or vessel registered in the United States. Simpler language
borrowed from the new section 2332i would replace current
subsection (c)(5) to achieve the same effect of jurisdiction
over terrorist acts done to influence the United States
government or that constitute a threat directed at the United
States.
Similarly to section 2332i(d), and elsewhere in this Act, a
new subsection (d) in section 831 would provide exemptions to
jurisdiction for activities of armed forces, implementing the
amendment to Article 2 of the CPPNM. The statute also draws on
the definition of ``military forces of a state'' used in the
Nuclear Terrorism Convention, Paragraph 6 of Article I.
Consistent with the understandings included in the instruments
of ratification for both the NTC and CPNNM (Treaty Doc. 110-4
at IX and Treaty Doc. 110-6 at 7) and with the interpretation
of 18 U.S.C. 2332f, the exemption in section 2332i(d) is
understood to include civilians who direct or organize the
official activities of military forces of a State.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
this Act may be cited as the ``Foreign Intelligence
Surveillance Act of 1978''.
TABLE OF CONTENTS
* * * * * * *
TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
* * * * * * *
[TITLE VI--REPORTING REQUIREMENT
TITLE VI--OVERSIGHT
* * * * * * *
Sec. 602. Declassification of significant decisions, orders, and
opinions.
Sec. 603. Annual reports.
Sec. 604. Public reporting by persons subject to orders.
* * * * * * *
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
definitions
Sec. 101. As used in this title:
(a) ``Foreign power'' means--
(1) a foreign government or any component,
thereof, whether or not recognized by the
United States;
(2) a faction of a foreign nation or
nations, not substantially composed of United
States persons;
(3) an entity that is openly acknowledged
by a foreign government or governments to be
directed and controlled by such foreign
government or governments;
(4) a group engaged in international
terrorism or activities in preparation
therefor;
(5) a foreign-based political organization,
not substantially composed of United States
persons;
(6) an entity that is directed and
controlled by a foreign government or
governments; or
(7) an entity not substantially composed of
United States persons that is engaged in the
international proliferation of weapons of mass
destruction.
(b) ``Agent of a foreign power'' means--
(1) any person other than a United States
person, who--
(A) acts in the United States as an
officer or employee of a foreign power,
or as a member of a foreign power as
defined in subsection (a)(4),
irrespective of whether the person is
inside the United States;
(B) acts for or on behalf of a
foreign power which engages in
clandestine intelligence activities in
the United States contrary to the
interests of the United States, when
the circumstances [of such person's
presence in the United States] indicate
that such person may engage in [such
activities in the United States] such
activities, or when such person
knowingly aids or abets any person in
the conduct of such activities or
knowingly conspires with any person to
engage in such activities;
(C) engages in international
terrorism or activities in preparation
therefore;
(D) engages in the international
proliferation of weapons of mass
destruction, or activities in
preparation therefor; or
[(E) engages in the international
proliferation of weapons of mass
destruction, or activities in
preparation therefor for or on behalf
of a foreign power; or]
(E) engages in the international
proliferation of weapons of mass
destruction, or activities in
preparation therefor, for or on behalf
of a foreign power, or knowingly aids
or abets any person in the conduct of
such proliferation or activities in
preparation therefor, or knowingly
conspires with any person to engage in
such proliferation or activities in
preparation therefor; or
(2) any person who--
(A) knowingly engages in
clandestine intelligence gathering
activities for or on behalf of a
foreign power, which activities involve
or may involve a violation of the
criminal statutes of the United States;
(B) pursuant to the direction of an
intelligence service or network of a
foreign power, knowingly engages in any
other clandestine intelligence
activities for or on behalf of such
foreign power, which activities involve
or are about to involve a violation of
the criminal statutes of the United
States;
(C) knowingly engages in sabotage
or international terrorism, or
activities that are in preparation
therefor, for or on behalf of a foreign
power;
(D) knowingly enters the United
States under a false or fraudulent
identity for or on behalf of a foreign
power or, while in the United States,
knowingly assumes a false or fraudulent
identity for or on behalf of a foreign
power; or
(E) knowingly aids or abets any
person in the conduct of activities
described in subparagraph (A), (B), or
(C) or knowingly conspires with any
person to engage in activities
described in subparagraph (A), (B), or
(C).
(c) ``International terrorism'' means activities
that--
(1) involve violent acts or acts dangerous
to human life that are a violation of the
criminal laws of the United States or of any
State, or that would be a criminal violation if
committed within the jurisdiction of the United
States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a
civilian population;
(B) to influence the policy of a
government by intimidation or coercion;
or
(C) to affect the conduct of a
government by assassination or
kidnapping; and
(3) occur totally outside the United
States, or transcend national boundaries in
terms of the means by which they are
accomplished, the persons they appear intended
to coerce or intimidate, or the locale in which
their perpetrators operate or seek asylum.
(d) ``Sabotage'' means activities that involve a
violation of chapter 105 of title 18, United States
Code, or that would involve such a violation if
committed against the United States.
(e) ``Foreign intelligence information'' means--
(1) information that relates to, and if
concerning a United States person is necessary
to, the ability of the United States to protect
against--
(A) actual or potential attack or
other grave hostile acts of a foreign
power or an agent of a foreign power;
(B) sabotage, international
terrorism, or the international
proliferation of weapons of mass
destruction by a foreign power or an
agent of a foreign power; or
(C) clandestine intelligence
activities by an intelligence service
or network of a foreign power or by an
agent of a foreign power; or
(2) information with respect to a foreign
power or foreign territory that relates to, and
if concerning a United States person is
necessary to--
(A) the national defense or the
security of the United States; or
(B) the conduct of the foreign
affairs of the United States.
(f) ``Electronic surveillance'' means--
(1) the acquisition by an electronic,
mechanical, or other surveillance device of the
contents of any wire or radio communications
sent by or intended to be received by a
particular, known United States person who is
in the United States, if the contents are
acquired by intentionally targeting that United
States person, under circumstances in which a
person has a reasonable expectation of privacy
and a warrant would be required for law
enforcement purposes;
(2) the acquisition by an electronic,
mechanical, or other surveillance device of the
contents of any wire communication to or from a
person in the United States, without the
consent of any party thereto, if such
acquisition occurs in the United States, but
does not include the acquisition of those
communications of computer trespassers that
would be permissible under section 2511(2)(i)
of title 18, United States Code;
(3) the intentional acquisition by an
electronic, mechanical, or other surveillance
device of the contents of any radio
communication, under circumstances in which a
person has a reasonable expectation of privacy
and a warrant would be required for law
enforcement purposes, and if both the sender
and all intended recipients are located within
the United States; or
(4) the installation or use of an
electronic, mechanical, or other surveillance
device in the United States for monitoring to
acquire information, other than from a wire or
radio communication, under circumstances in
which a person has a reasonable expectation of
privacy and a warrant would be required for law
enforcement purposes.
(g) ``Attorney General'' means the Attorney General
of the United States (or Acting Attorney General), the
Deputy Attorney General, or, upon the designation of
the Attorney General, the Assistant Attorney General
designated as the Assistant Attorney General for
National Security under section 507A of title 28,
United States Code.
(h) ``Minimization procedures'', with respect to
electronic surveillance, means--
(1) specific procedures, which shall be
adopted by the Attorney General, that are
reasonably designed in light of the purpose and
technique of the particular surveillance, to
minimize the acquisition and retention, and
prohibit the dissemination, of nonpublicly
available information concerning unconsenting
United States persons consistent with the need
of the United States to obtain, produce, and
disseminate foreign intelligence information;
(2) procedures that require that
nonpublicly available information, which is not
foreign intelligence information, as defined in
subsection (e)(1), shall not be disseminated in
a manner that identifies any United States
person, without such person's consent, unless
such person's identity is necessary to
understand foreign intelligence information or
assess its importance;
(3) notwithstanding paragraphs (1) and (2),
procedures that allow for the retention and
dissemination of information that is evidence
of a crime which has been, is being, or is
about to be committed and that is to be
retained or disseminated for law enforcement
purposes; and
(4) notwithstanding paragraphs (1), (2),
and (3), with respect to any electronic
surveillance approved pursuant to section
102(a), procedures that require that no
contents of any communication to which a United
States person is a party shall be disclosed,
disseminated, or used for any purpose or
retained for longer than 72 hours unless a
court order under section 105 is obtained or
unless the Attorney General determines that the
information indicates a threat of death or
serious bodily harm to any person.
(i) ``United States person'' means a citizen of the
United States, an alien lawfully admitted for permanent
residence (as defined in section 101(a)(20) of the
Immigration and Nationality Act), an unincorporated
association a substantial number of members of which
are citizens of the United States or aliens lawfully
admitted for permanent residence, or a corporation
which is incorporated in the United States, but does
not include a corporation or an association which is a
foreign power, as defined in subsection (a) (1), (2),
or (3).
(j) ``United States'', when used in a geographic
sense, means all areas under the territorial
sovereignty of the United States and the Trust
Territory of the Pacific Islands.
(k) ``Aggrieved person'' means a person who is the
target of an electronic surveillance or any other
person whose communications or activities were subject
to electronic surveillance.
(l) ``Wire communication'' means any communications
while it is being carried by a wire, cable, or other
like connection furnished or operated by any person
engaged as a common carrier in providing or operating
such facilities for the transmission of interstate or
foreign communications.
(m) ``Person'' means any individual, including any
officer or employee of the Federal Government, or any
group, entity, association, corporation, or foreign
power.
(n) ``Contents'', when used with respect to a
communication, includes any information concerning the
identity of the parties to such communications or the
existence, substance, purport, or meaning of that
communication.
(o) ``State'' means any State of the United States,
the District of Columbia, the Commonwealth of Puerto
Rico, the Trust Territory of the Pacific Islands, an
any territory or possession of the United States.
(p) ``Weapon of mass destruction'' means--
(1) any explosive, incendiary, or poison
gas device that is designed, intended, or has
the capability to cause a mass casualty
incident;
(2) any weapon that is designed, intended,
or has the capability to cause death or serious
bodily injury to a significant number of
persons through the release, dissemination, or
impact of toxic or poisonous chemicals or their
precursors;
(3) any weapon involving a biological
agent, toxin, or vector (as such terms are
defined in section 178 of title 18, United
States Code) that is designed, intended, or has
the capability to cause death, illness, or
serious bodily injury to a significant number
of persons; or
(4) any weapon that is designed, intended,
or has the capability to release radiation or
radioactivity causing death, illness, or
serious bodily injury to a significant number
of persons.
* * * * * * *
designation of judges
Sec. 103. (a)(1) The Chief Justice of the United States
shall publicly designate 11 district court judges from at least
seven of the United States judicial circuits of whom no fewer
than 3 shall reside within 20 miles of the District of Columbia
who shall constitute a court which shall have jurisdiction to
hear applications for and grant orders approving electronic
surveillance anywhere within the United States under the
procedures set forth in this Act, except that no judge
designated under this subsection (except when sitting en banc
under paragraph (2)) shall hear the same application for
electronic surveillance under this Act which has been denied
previously by another judge designated under this subsection.
If any judge so designated denies an application for an order
authorizing electronic surveillance under this Act, such judge
shall provide immediately for the record a written statement of
each reason for his decision and, on motion of the United
States, the record shall be transmitted, under seal, to the
court of review established in subsection (b).
(2)(A) The court established under this subsection may, on
its own initiative, or upon the request of the Government in
any proceeding or a party under section 501(f) or paragraph (4)
or (5) of section 702(h), hold a hearing or rehearing, en banc,
when ordered by a majority of the judges that constitute such
court upon a determination that--
(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
(ii) the proceeding involves a question of
exceptional importance.
(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by the
court en banc. When exercising such authority, the court en
banc shall comply with any requirements of this Act on the
exercise of such authority.
(C) For purposes of this paragraph, the court en banc shall
consist of all judges who constitute the court established
under this subsection.
(b) The Chief Justice shall publicly designate three
judges, one of whom shall be publicly designate as the
presiding judge, from the United States district courts or
courts of appeals who together shall comprise a court of review
which shall have jurisdiction to review the denial of any
application made under this Act. If such court determines that
the application was properly denied, the court shall
immediately provide for the record a written statement of each
reason for its decision and, on petition of the United States
for a writ of certiorari, the record shall be transmitted under
seal to the Supreme Court, which shall have jurisdiction to
review such decision.
(c) Proceedings under this Act shall be conducted as
expeditiously as possible. The record of proceedings under this
Act, including applications made and orders granted, shall be
maintained under security measures established by the Chief
Justice in consultation with the Attorney General and the
Director of National Intelligence.
(d) Each judge designated under this section shall so serve
for a maximum of seven years and shall not be eligible for
redesignation, except that the judges first designated under
subsection (a) shall be designated for terms of from one to
seven years so that one term expires each year, and that judges
first designated under subsection (b) shall be designated for
terms of three, five, and seven years.
(e)(1) Three judges designated under subsection (a) who
reside within 20 miles of the District of Columbia, or, if all
of such judges are unavailable, other judges of the court
established under subsection (a) as may be designated by the
presiding judge of such court, shall comprise a petition review
pool which shall have jurisdiction to review petitions filed
pursuant to section 501(f)(1) or 702(h)(4).
(2) Not later than 60 days after the date of the enactment
of the USA PATRIOT Improvement and Reauthorization Act of 2005,
the court established under subsection (a) shall adopt and,
consistent with the protection of national security, publish
procedures for the review of petitions filed pursuant to
section 501(f)(1) or 702(h)(4) by the panel established under
paragraph (1). Such procedures shall provide that review of a
petition shall be conducted in camera and shall also provide
for the designation of an acting presiding judge.
(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered under
any title of this Act, while the court established under
subsection (a) conducts a rehearing, while an appeal is pending
to the court established under subsection (b), or while a
petition of certiorari is pending in the Supreme Court of the
United States, or during the pendency of any review by that
court.
(2) The authority described in paragraph (1) shall apply to
an order entered under any provision of this Act.
(g)(1) The courts established pursuant to subsections (a)
and (b) may establish such rules and procedures, and take such
actions, as are reasonably necessary to administer their
responsibilities under this Act.
(2) The rules and procedures established under paragraph
(1), and any modifications of such rules and procedures, shall
be recorded, and shall be transmitted to the following:
(A) All of the judges on the court established
pursuant to subsection (a).
(B) All of the judges on the court of review
established pursuant to subsection (b).
(C) The Chief Justice of the United States.
(D) The Committee on the Judiciary of the Senate.
(E) The Select Committee on Intelligence of the
Senate.
(F) The Committee on the Judiciary of the House of
Representatives.
(G) The Permanent Select Committee on Intelligence
of the House of Representatives.
(3) The transmissions required by paragraph (2) shall be
submitted in unclassified form, but may include a classified
annex.
(h) Nothing in this Act shall be construed to reduce or
contravene the inherent authority of the court established
under subsection (a) to determine or enforce compliance with an
order or a rule of such court or with a procedure approved by
such court.
(i) Amicus Curiae.--
(1) Designation.--The presiding judges of the
courts established under subsections (a) and (b) shall,
not later than 180 days after the enactment of this
subsection, jointly designate not fewer than 5
individuals to be eligible to serve as amicus curiae,
who shall serve pursuant to rules the presiding judges
may establish. In designating such individuals, the
presiding judges may consider individuals recommended
by any source, including members of the Privacy and
Civil Liberties Oversight Board, the judges determine
appropriate.
(2) Authorization.--A court established under
subsection (a) or (b), consistent with the requirement
of subsection (c) and any other statutory requirement
that the court act expeditiously or within a stated
time--
(A) shall appoint an individual who has
been designated under paragraph (1) to serve as
amicus curiae to assist such court in the
consideration of any application for an order
or review that, in the opinion of the court,
presents a novel or significant interpretation
of the law, unless the court issues a finding
that such appointment is not appropriate; and
(B) may appoint an individual or
organization to serve as amicus curiae,
including to provide technical expertise, in
any instance as such court deems appropriate
or, upon motion, permit an individual or
organization leave to file an amicus curiae
brief.
(3) Qualifications of amicus curiae.--
(A) Expertise.--Individuals designated
under paragraph (1) shall be persons who
possess expertise in privacy and civil
liberties, intelligence collection,
communications technology, or any other area
that may lend legal or technical expertise to a
court established under subsection (a) or (b).
(B) Security clearance.--Individuals
designated pursuant to paragraph (1) shall be
persons who are determined to be eligible for
access to classified information necessary to
participate in matters before the courts.
Amicus curiae appointed by the court pursuant
to paragraph (2) shall be persons who are
determined to be eligible for access to
classified information, if such access is
necessary to participate in the matters in
which they may be appointed.
(4) Duties.--If a court established under
subsection (a) or (b) appoints an amicus curiae under
paragraph (2)(A), the amicus curiae shall provide to
the court, as appropriate--
(A) legal arguments that advance the
protection of individual privacy and civil
liberties;
(B) information related to intelligence
collection or communications technology; or
(C) legal arguments or information
regarding any other area relevant to the issue
presented to the court.
(5) Assistance.--An amicus curiae appointed under
paragraph (2)(A) may request that the court designate
or appoint additional amici curiae pursuant to
paragraph (1) or paragraph (2), to be available to
assist the amicus curiae.
(6) Access to information.--
(A) In general.--If a court established
under subsection (a) or (b) appoints an amicus
curiae under paragraph (2)(A), the amicus
curiae--
(i) shall have access to all
relevant legal precedent, and any
application, certification, petition,
motion, or such other materials that
the court determines are relevant to
the duties of the amicus curiae; and
(ii) may, if the court determines
that it is relevant to the duties of
the amicus curiae, consult with any
other individuals designated pursuant
to paragraph (1) regarding information
relevant to any assigned proceeding.
(B) Briefings.--The Attorney General may
periodically brief or provide relevant
materials to amicus curiae designated pursuant
to paragraph (1) regarding constructions and
interpretations of this Act and legal,
technological, and other issues related to
actions authorized by this Act.
(C) Classified information.--An amicus
curiae designated or appointed by the court may
have access to classified documents,
information, and other materials or proceedings
only if that individual is eligible for access
to classified information and to the extent
consistent with the national security of the
United States.
(D) Rule of construction.--Nothing in this
section shall be construed to require the
Government to provide information to an amicus
curiae appointed by the court that is
privileged from disclosure.
(7) Notification.--A presiding judge of a court
established under subsection (a) or (b) shall notify
the Attorney General of each exercise of the authority
to appoint an individual to serve as amicus curiae
under paragraph (2).
(8) Assistance.--A court established under
subsection (a) or (b) may request and receive
(including on a nonreimbursable basis) the assistance
of the executive branch in the implementation of this
subsection.
(9) Administration.--A court established under
subsection (a) or (b) may provide for the designation,
appointment, removal, training, or other support for an
individual appointed to serve as amicus curiae under
paragraph (2) in a manner that is not inconsistent with
this subsection.
(10) Receipt of information.--Nothing in this
subsection shall limit the ability of a court
established under subsection (a) or (b) to request or
receive information or materials from, or otherwise
communicate with, the Government or amicus curiae
appointed under paragraph (2) on an ex parte basis, nor
limit any special or heightened obligation in any ex
parte communication or proceeding.
(j) Review of FISA Court Decisions.--Following issuance of
an order under this Act, a court established under subsection
(a) shall certify for review to the court established under
subsection (b) any question of law that may affect resolution
of the matter in controversy that the court determines warrants
such review because of a need for uniformity or because
consideration by the court established under subsection (b)
would serve the interests of justice. Upon certification of a
question of law under this subsection, the court established
under subsection (b) may give binding instructions or require
the entire record to be sent up for decision of the entire
matter in controversy.
(k) Review of FISA Court of Review Decisions.--
(1) Certification.--For purposes of section 1254(2)
of title 28, United States Code, the court of review
established under subsection (b) shall be considered to
be a court of appeals.
(2) Amicus curiae briefing.--Upon certification of
an application under paragraph (1), the Supreme Court
of the United States may appoint an amicus curiae
designated under subsection (i)(1), or any other
person, to provide briefing or other assistance.
* * * * * * *
issuance of an order
Sec. 105. (a) Upon an application made pursuant to section
104, the judge shall enter an ex parte order as requested or as
modified approving the electronic surveillance if he finds
that--
(1) the application has been made by a Federal
officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the
applicant there is probable cause to believe that--
(A) the target of the electronic
surveillance is a foreign power or an agent of
a foreign power: Provided, That no United
States person may be considered a foreign power
or an agent of a foreign power solely upon the
basis of activities protected by the first
amendment to the Constitution of the United
States; and
(B) each of the facilities or places at
which the electronic surveillance is directed
is being used, or is about to be used, by a
foreign power or an agent of a foreign power;
(3) the proposed minimization procedures meet the
definition of minimization procedures under section
101(h); and
(4) the application which has been filed contains
all statements and certifications required by section
104 and, if the target is a United States person, the
certification or certifications are not clearly
erroneous on the basis of the statement made under
section 104(a)(7)(E) and any other information
furnished under section 104(d).
(b) In determining whether or not probable cause exists for
purposes of an order under subsection (a)(2), a judge may
consider past activities of the target, as well as facts and
circumstances relating to current or future activities of the
target.
(c)(1) specifications.--An order approving an electronic
surveillance under this section shall specify--
(A) the identity, if known, or a
description of the specific target of the
electronic surveillance identified or described
in the application pursuant to section
104(a)(3);
(B) the nature and location of each of the
facilities or places at which the electronic
surveillance will be directed, if known;
(C) the type of information sought to be
acquired and the type of communications or
activities to be subjected to the surveillance;
(D) the means by which the electronic
surveillance will be effected and whether
physical entry will be used to effect the
surveillance; and
(E) the period of time during which the
electronic surveillance is approved.
(2) Directions.--An order approving an electronic
surveillance under this section shall direct--
(A) that the minimization procedures be
followed;
(B) that, upon the request of the
applicant, a specified communication or other
common carrier, landlord, custodian, or other
specified person, or in circumstances where the
Court finds, based upon specific facts provided
in the application, that the actions of the
target of the application may have the effect
of thwarting the identification of a specified
person, such other persons, furnish the
applicant forthwith all information,
facilities, or technical assistance necessary
to accomplish the electronic surveillance in
such a manner as will protect its secrecy and
produce a minimum of interference with the
services that such carrier, landlord,
custodian, or other person is providing that
target of electronic surveillance;
(C) that such carrier, landlord, custodian,
or other person maintain under security
procedures approved by the Attorney General and
the Director of National Intelligence any
records concerning the surveillance or the aid
furnished that such person wishes to retain;
and
(D) that the applicant compensate, at the
prevailing rate, such carrier, landlord,
custodian, or other person for furnishing such
aid.
(3) Special directions for certain orders.--An
order approving an electronic surveillance under this
section in circumstances where the nature and location
of each of the facilities or places at which the
surveillance will be directed is unknown shall direct
the applicant to provide notice to the court within ten
days after the date on which surveillance begins to be
directed at any new facility or place, unless the court
finds good cause to justify a longer period of up to 60
days, of--
(A) the nature and location of each new
facility or place at which the electronic
surveillance is directed;
(B) the facts and circumstances relied upon
by the applicant to justify the applicant's
belief that each new facility or place at which
the electronic surveillance is directed is or
was being used, or is about to be used, by the
target of the surveillance;
(C) a statement of any proposed
minimization procedures that differ from those
contained in the original application or order,
that may be necessitated by a change in the
facility or place at which the electronic
surveillance is directed; and
(D) the total number of electronic
surveillances that have been or are being
conducted under the authority of the order.
(d)(1) An order issued under this section may approve an
electronic surveillance for the period necessary to achieve its
purpose, or for ninety days, whichever is less, except that (A)
an order under this section shall approve an electronic
surveillance targeted against a foreign power, as defined in
section 101(a), (1), (2), or (3), for the period specified in
the application or for one year, whichever is less, and (B) an
order under this Act for a surveillance targeted against an
agent of a foreign power who is not a United States person may
be for the period specified in the application or for 120 days,
whichever is less.
(2) Extensions of an order issued under this title may be
granted on the same basis as an original order upon an
application for an extension and new findings made in the same
manner as required for an original order, except that (A) an
extension of an order under this Act for a surveillance
targeted against a foreign power, a defined in paragraph (5),
(6), or (7) of section 101(a), or against a foreign power as
defined in section 101(a)(4) that is not a United States
person, may be for a period not to exceed one year if the judge
finds probable cause to believe that no communication of any
individual United States person will be acquired during the
period, and (B) an extension of an order under this Act for a
surveillance targeted against an agent of a foreign power who
is not a United States person may be for a period not to exceed
1 year.
(3) At or before the end of the period of time for which
electronic surveillance is approved by an order or an
extension, the judge may assess compliance with the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
acquired, retained, or disseminated.
(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment of
electronic surveillance if the Attorney General--
(A) reasonably determines that an emergency
situation exists with respect to the employment of
electronic surveillance to obtain foreign intelligence
information before an order authorizing such
surveillance can with due diligence be obtained;
(B) reasonably determines that the factual basis
for the issuance of an order under this title to
approve such electronic surveillance exists;
(C) informs, either personally or through a
designee, a judge having jurisdiction under section 103
at the time of such authorization that the decision has
been made to employ emergency electronic surveillance;
and
(D) makes an application in accordance with this
title to a judge having jurisdiction under section 103
as soon as practicable, but not later than 7 days after
the Attorney General authorizes such surveillance.
(2) If the Attorney General authorizes the emergency
employment of electronic surveillance under paragraph (1), the
Attorney General shall require that the minimization procedures
required by this title for the issuance of a judicial order be
followed.
(3) In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate when
the information sought is obtained, when the application for
the order is denied, or after the expiration of 7 days from the
time of authorization by the Attorney General, whichever is
earliest.
(4) A denial of the application made under this subsection
may be reviewed as provided in section 103.
(5) In the event that such application for approval is
denied, or in any other case where the electronic surveillance
is terminated and no order is issued approving the
surveillance, no information obtained or evidence derived from
such surveillance shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person acquired
from such surveillance shall subsequently be used or disclosed
in any other manner by Federal officers or employees without
the consent of such person, except with the approval of the
Attorney General if the information indicates a threat of death
or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).
(f)(1) Notwithstanding any other provision of this Act, the
lawfully authorized targeting of a non-United States person
previously believed to be located outside the United States for
the acquisition of foreign intelligence information may
continue for a period not to exceed 72 hours from the time that
the non-United States person is reasonably believed to be
located inside the United States and the acquisition is subject
to this title or to title III of this Act, provided that the
head of an element of the intelligence community--
(A) reasonably determines that a lapse in the
targeting of such non-United States person poses a
threat of death or serious bodily harm to any person;
(B) promptly notifies the Attorney General of a
determination under subparagraph (A); and
(C) requests, as soon as practicable, the
employment of emergency electronic surveillance under
subsection (e) or the employment of an emergency
physical search pursuant to section 304(e), as
warranted.
(2) The authority under this subsection to continue the
acquisition of foreign intelligence information is limited to a
period not to exceed 72 hours and shall cease upon the earlier
of the following:
(A) The employment of emergency electronic
surveillance under subsection (e) or the employment of
an emergency physical search pursuant to section
304(e).
(B) An issuance of a court order under this title
or title III of this Act.
(C) The Attorney General provides direction that
the acquisition be terminated.
(D) The head of the element of the intelligence
community conducting the acquisition determines that a
request under paragraph (1)(C) is not warranted.
(E) When the threat of death or serious bodily harm
to any person is no longer reasonably believed to
exist.
(3) Nonpublicly available information concerning
unconsenting United States persons acquired under this
subsection shall not be disseminated during the 72 hour time
period under paragraph (1) unless necessary to investigate,
reduce, or eliminate the threat of death or serious bodily harm
to any person.
(4) If the Attorney General declines to authorize the
employment of emergency electronic surveillance under
subsection (e) or the employment of an emergency physical
search pursuant to section 304(e), or a court order is not
obtained under this title or title III of this Act, information
obtained during the 72 hour acquisition time period under
paragraph (1) shall not be retained, except with the approval
of the Attorney General if the information indicates a threat
of death or serious bodily harm to any person.
(5) Paragraphs (5) and (6) of subsection (e) shall apply to
this subsection.
[(f)] (g) Notwithstanding any other provision of this
title, officers, employees, or agents of the United States are
authorized in the normal course of their official duties to
conduct electronic surveillance not targeted against the
communications of any particular person or persons, under
procedures approved by the Attorney General, solely to--
(1) test the capability of electronic equipment,
if--
(A) it is not reasonable to obtain the
consent of the persons incidentally subjected
to the surveillance;
(B) the test is limited in extent and
duration to that necessary to determine to
capability of the equipment;
(C) the contents of any communication
acquired are retained and used only for the
purpose of determining the capability of the
equipment, are disclosed only to test
personnel, and are destroyed before or
immediately upon completion of the test; and
(D) Provided, That the test may exceed
ninety days only with the prior approval of the
Attorney General;
(2) determine the existence and capability of
electronic surveillance equipment being used by persons
not authorized to conduct electronic surveillance, if--
(A) it is not reasonable to obtain the
consent of persons incidentally subjected to
the surveillance;
(B) such electronic surveillance is limited
in extent and duration to that necessary to
determine the existence and capability of such
equipment; and
(C) any information acquired by such
surveillance is used only to enforce chapter
119 of title 18, United States Code, or section
705 of the Communications Act of 1934, or to
protect information from unauthorized
surveillance; or
(3) train intelligence personnel in the use of
electronic surveillance equipment, if--
(A) it is not reasonable to--
(i) obtain the consent of the
persons incidentally subjected to the
surveillance;
(ii) train persons in the course of
surveillances otherwise authorized by
this title; or
(iii) train persons in the use of
such equipment without engaging in
electronic surveillance;
(B) such electronic surveillance is limited
in extent and duration to that necessary to
train the personnel in the use of the
equipment; and
(C) no contents of any communication
acquired are retained or disseminated for any
purpose, but are destroyed as soon as
reasonably possible.
[(g)] (h) Certifications made by the Attorney General
pursuant to section 102(a) and applications made and orders
granted under this title shall be retained for a period of at
least ten years from the date of the certification or
application.
[(h)] (i) No cause of action shall lie in any court against
any provider of a wire or electronic communication service,
landlord, custodian, or other person (including any officer,
employee, agent, or other specified person thereof) that
furnishes any information, facilities, or technical assistance
in accordance with a court order or request for emergency
assistance under this Act for electronic surveillance or
physical search.
[(i)] (j) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants such
application, upon the request of the applicant, the judge shall
also authorize the installation and use of pen registers and
trap and trace devices, and direct the disclosure of the
information set forth in section 402(d)(2).
use of information
Sec. 106. (a) Information acquired from an electronic
surveillance conducted pursuant to this title concerning any
United States person may be used and disclosed by Federal
officers and employees without the consent of the United States
person only in accordance with the minimization procedures
required by this title. No otherwise privileged communication
obtained in accordance with, or in violation of, the provisions
of this title shall lose its privileged character. No
information acquired from an electronic surveillance pursuant
to this title may be used or disclosed by Federal officers or
employees except for lawful purposes.
(b) No information acquired pursuant to this title shall be
disclosed for law enforcement purposes unless such disclosure
is accompanied by a statement that such information, or any
information derived therefrom, may only be used in a criminal
proceeding with the advance authorization of the Attorney
General.
(c) Whenever the Government intends to enter into evidence
or otherwise use or disclose in any trial, hearing, or other
proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of the United States,
against an aggrieved person, any information obtained or
derived from an electronic surveillance of that aggrieved
person pursuant to the authority of this title, the Government
shall, prior to the trial, hearing, or other proceeding or at a
reasonable time prior to an effort to so disclose or so use
that information or submit it in evidence, notify the aggrieved
person and the court or other authority in which the
information is to be disclosed or used that the Government
intends to so disclose or so use such information.
(d) Whenever any State or political subdivision thereof
intends to enter into evidence or otherwise use or disclose in
any trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other
authority of a State or a political subdivision thereof,
against an aggrieved person any information obtained or derived
from an electronic surveillance of that aggrieved person
pursuant to the authority of this title, the State or political
subdivision thereof shall notify the aggrieved person, the
court or other authority in which the information is to be
disclosed or used, and the Attorney General that the State or
political subdivision thereof intends to so disclose or so use
such information.
(e) Any person against whom evidence obtained or derived
from an electronic surveillance to which he is an aggrieved
person is to be, or has been, introduced or otherwise used or
disclosed in any trial, hearing, or other proceeding in or
before any court, department, officer, agency, regulatory body,
or other authority of the United States, a State, or a
political subdivision thereof, may move to suppress the
evidence obtained or derived from such electronic surveillance
on the grounds that--
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity
with an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other
proceeding unless there was no opportunity to make such a
motion or the person was not aware of the grounds of the
motion.
(f) Whenever a court or other authority is notified
pursuant to subsection (c) or (d), or whenever a motion is made
pursuant to subsection (e), or whenever any motion or request
is made by an aggrieved person pursuant to any other statute or
rule of the United States or any State before any court or
other authority of the United States or any State to discover
or obtain applications or orders or other materials relating to
electronic surveillance or to discover, obtain, or suppress
evidence or information obtained or derived from electronic
surveillance under this Act, the United States district court
or, where the motion is made before another authority, the
United States district court in the same district as the
authority, shall, notwithstanding any other law, if the
Attorney General files an affidavit under oath that disclosure
or an adversary hearing would harm the national security of the
United States, review in camera and ex parte the application,
order, and such other materials relating to the surveillance as
may be necessary to determine whether the surveillance of the
aggrieved person was lawfully authorized and conducted. In
making this determination, the court may disclose to the
aggrieved person, under appropriate security procedures and
protective orders, portions of the application, order, or other
materials relating to the surveillance only where such
disclosure is necessary to make an accurate determination of
the legality of the surveillance.
(g) If the United States district court pursuant to
subsection (f) determine that the surveillance was not lawfully
authorized or conducted, it shall, in accordance with the
requirements of law, suppress the evidence which was unlawfully
obtained or derived from electronic surveillance of the
aggrieved person or otherwise grant the motion of the aggrieved
person. If the court determines that the surveillance was
lawfully authorized and conducted, it shall deny the motion of
the aggrieved person except to the extent that due process
requires discovery or disclosure.
(h) Orders granting motions or requests under subsection
(g), decisions under this section that electronic surveillance
was not lawfully authorized or conducted, and orders of the
United States district court requiring review or granting
disclosure of applications, orders, or other materials relating
to a surveillance shall be final orders and binding upon all
courts of the United States and the several States except a
United States court of appeals and the Supreme Court.
(i) In circumstances involving the unintentional
acquisition by an electronic, mechanical, or other surveillance
device of the contents of any communication, under
circumstances in which a person has a reasonable expectation of
privacy and a warrant would be required for law enforcement
purposes, and if both the sender and all intended recipients
are located within the United States, such contents shall be
destroyed upon recognition, unless the Attorney General
determines that the contents indicates a threat of death or
serious bodily harm to any person.
(j) If an emergency employment of electronic surveillance
is authorized under [section 105(e)] subsection (e) or (f) of
section 105 and a subsequent order approving the surveillance
is not obtained, the judge shall cause to be served on any
United States person named in the application and on such other
United States persons subject to electronic surveillance as the
judge may determine in his discretion it is in the interest of
justice to serve, notice of--
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was
or was not obtained.
On an ex parte showing of good cause to the judge the serving
of the notice required by this subsection may be postponed or
suspended for a period not to exceed ninety days. Thereafter,
on a further ex parte showing of good cause, the court shall
forego ordering the serving of the notice required under this
subsection.
(k)(1) Federal officers who conduct electronic surveillance
to acquire foreign intelligence information under this title
may consult with Federal law enforcement officers or law
enforcement personnel of a State or political subdivision of a
State (including the chief executive officer of that State or
political subdivision who has the authority to appoint or
direct the chief law enforcement officer of that State or
political subdivision) to coordinate efforts to investigate or
protect against--
(A) actual or potential attack or other grave
hostile acts of a foreign power or an agent of a
foreign power;
(B) sabotage, international terrorism, or the
international proliferation of weapons of mass
destruction by a foreign power or an agent of a foreign
power; or
(C) clandestine intelligence activities by an
intelligence service or network of a foreign power or
by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not
preclude the certification required by section 104(a)(7)(B) or
the entry of an order under section 105.
* * * * * * *
congressional oversight
Sec. 108. (a)(1) On a semiannual basis the Attorney General
shall fully inform [the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence,
and the Committee on the Judiciary of the Senate,] the
Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary of
the Senate concerning all electronic surveillance under this
title. Nothing in this title shall be deemed to limit the
authority and responsibility of the appropriate committees of
each House of Congress to obtain such information as they may
need to carry out their respective functions and duties.
(2) Each report under the first sentence of
paragraph (1) shall include a description of--
(A) the total number of applications made
for orders and extensions of orders approving
electronic surveillance under this title where
the nature and location of each facility or
place at which the electronic surveillance will
be directed is unknown;
(B) each criminal case in which information
acquired under this Act has been authorized for
use at trial during the period covered by such
report; [and]
(C) the total number of emergency
employments of electronic surveillance under
section 105(e) and the total number of
subsequent orders approving or denying such
electronic surveillance[.]; and
(D) the total number of authorizations
under section 105(f) and the total number of
subsequent emergency employments of electronic
surveillance under section 105(e) or emergency
physical searches pursuant to section 301(e).
(b) On or before one year after the effective date of this
Act and on the same day each year for four years thereafter,
the Permanent Select Committee on Intelligence and the Senate
Select Committee on Intelligence shall report respectively to
the House of Representatives and the Senate, concerning the
implementation of this Act. Said reports shall include but not
be limited to an analysis and recommendations concerning
whether this Act should be (1) amended, (2) repealed, or (3)
permitted to continue in effect without amendment.
* * * * * * *
TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
congressional oversight
Sec. 306. On a semiannual basis the Attorney General shall
fully inform the [Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on
Intelligence of the Senate, and the Committee on the Judiciary
of the Senate,] Permanent Select Committee on Intelligence and
the Committee on the Judiciary of the House of Representatives
and the Select Committee on Intelligence and the Committee on
the Judiciary of the Senate concerning all physical searches
conducted pursuant to this title. On a semiannual basis the
Attorney General shall also provide to those committees [and
the Committee on the Judiciary of the House of Representatives]
a report setting forth with respect to the preceding six-month
period--
(1) the total number of applications made for
orders approving physical searches under this title;
(2) the total number of such orders either granted,
modified, or denied;
(3) the number of physical searches which involved
searches of the residences, offices, or personal
property of United States persons, and the number of
occasions, if any, where the Attorney General provided
notice pursuant to section 305(b); and
(4) the total number of emergency physical searches
authorized by the Attorney General under section 304(e)
and the total number of subsequent orders approving or
denying such physical searches.
* * * * * * *
TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE PURPOSES
definitions
Sec. 401. As used in this title:
(1) The terms ``foreign power'', ``agent of a
foreign power'', ``international terrorism'', ``foreign
intelligence information'', ``Attorney General'',
``United States person'', ``United States'',
``person'', and ``State'' shall have the same meanings
as in section 101 of this Act.
(2) The terms ``pen register'' and ``trap and trace
device'' have the meanings given such terms in section
3127 of title 18, United States Code.
(3) The term ``aggrieved person'' means any
person--
(A) whose telephone line was subject to the
installation or use of a pen register or trap
and trace device authorized by this title; or
(B) whose communication instrument or
device was subject to the use of a pen register
or trap and trace device authorized by this
title to capture incoming electronic or other
communications impulses.
(4)(A) The term ``specific selection term''--
(i) is a term that specifically identifies
a person, account, address, or personal device,
or any other specific identifier; and
(ii) is used to limit, to the greatest
extent reasonably practicable, the scope of
information sought, consistent with the purpose
for seeking the use of the pen register or trap
and trace device.
(B) A specific selection term under subparagraph
(A) does not include an identifier that does not limit,
to the greatest extent reasonably practicable, the
scope of information sought, consistent with the
purpose for seeking the use of the pen register or trap
and trace device, such as an identifier that--
(i) identifies an electronic communication
service provider (as that term is defined in
section 701) or a provider of remote computing
service (as that term is defined in section
2711 of title 18, United States Code), when not
used as part of a specific identifier as
described in subparagraph (A), unless the
provider is itself a subject of an authorized
investigation for which the specific selection
term is used as the basis for the use; or
(ii) identifies a broad geographic region,
including the United States, a city, a county,
a State, a zip code, or an area code, when not
used as part of a specific identifier as
described in subparagraph (A).
(C) For purposes of subparagraph (A), the term
``address'' means a physical address or electronic
address, such as an electronic mail address or
temporarily assigned network address (including an
Internet protocol address).
(D) Nothing in this paragraph shall be construed to
preclude the use of multiple terms or identifiers to
meet the requirements of subparagraph (A).
pen registers and trap and trace devices for foreign intelligence and
international terrorism investigations
Sec. 402. (a)(1) Notwithstanding any other provision of
law, the Attorney General or a designated attorney for the
Government may make an application for an order or an extension
of an order authorizing or approving the installation and use
of a pen register or trap and trace device for any
investigation to obtain foreign intelligence information not
concerning a United States person or to protect against
international terrorism or clandestine intelligence activities,
provided that such investigation of a United States person is
not conducted solely upon the basis of activities protected by
the first amendment to the Constitution which is being
conducted by the Federal Bureau of Investigation under such
guidelines as the Attorney General approves pursuant to
Executive Order No. 12333, or a successor order.
(2) The authority under paragraph (1) is in addition to the
authority under title I of this Act to conduct the electronic
surveillance referred to in that paragraph.
(b) Each application under this section shall be in writing
under oath or affirmation to--
(1) a judge of the court established by section
103(a) of this Act; or
(2) a United States Magistrate Judge under chapter
43 of title 28, United States Code, who is publicly
designated by the Chief Justice of the United States to
have the power to hear applications for and grant
orders approving the installation and use of a pen
register or trap and trace device on behalf of a judge
of that court.
(c) Each application under this section shall require the
approval of the Attorney General, or a designated attorney for
the Government, and shall include--
(1) the identity of the Federal officer seeking to
use the pen register or trap and trace device covered
by the application[; and];
(2) a certification by the applicant that the
information likely to be obtained is foreign
intelligence information not concerning a United States
person or is relevant to an ongoing investigation to
protect against international terrorism or clandestine
intelligence activities, provided that such
investigation of a United States person is not
conducted solely upon the basis of activities protected
by the first amendment to the Constitution[.]; and
(3) a specific selection term to be used as the
basis for the use of the pen register or trap and trace
device.
(d)(1) Upon an application made pursuant to this section,
the judge shall enter an ex parte order as requested, or as
modified, approving the installation and use of a pen register
or trap and trace device if the judge finds that the
application satisfies the requirements of this section.
(2) An order issued under this section--
(A) shall specify--
(i) the identity, if known, of the person
who is the subject of the investigation;
(ii) the identity, if known, of the person
to whom is leased or in whose name is listed
the telephone line or other facility to which
the pen register or trap and trace device is to
be attached or applied; and
(iii) the attributes of the communications
to which the order applies, such as the number
or other identifier, and, if known, the
location of the telephone line or other
facility to which the pen register or trap and
trace device is to be attached or applied and,
in the case of a trap and trace device, the
geographic limits of the trap and trace order;
(B) shall direct that--
(i) upon request of the applicant, the
provider of a wire or electronic communication
service, landlord, custodian, or other person
shall furnish any information, facilities, or
technical assistance necessary to accomplish
the installation and operation of the pen
register or trap and trace device in such a
manner as will protect its secrecy and produce
a minimum amount of interference with the
services that such provider, landlord,
custodian, or other person is providing the
person concerned;
(ii) such provider, landlord, custodian, or
other person--
(I) shall not disclose the
existence of the investigation or of
the pen register or trap and trace
device to any person unless or until
ordered by the court; and
(II) shall maintain, under security
procedures approved by the Attorney
General and the Director of National
Intelligence pursuant to section
105(b)(2)(C) of this Act, any records
concerning the pen register or trap and
trace device or the aid furnished; and
(iii) the applicant shall compensate such
provider, landlord, custodian, or other person
for reasonable expenses incurred by such
provider, landlord, custodian, or other person
in providing such information, facilities, or
technical assistance; and
(C) shall direct that, upon the request of the
applicant, the provider of a wire or electronic
communication service shall disclose to the Federal
officer using the pen register or trap and trace device
covered by the order--
(i) in the case of the customer or
subscriber using the service covered by the
order (for the period specified by the order)--
(I) the name of the customer or
subscriber;
(II) the address of the customer or
subscriber;
(III) the telephone or instrument
number, or other subscriber number or
identifier, of the customer or
subscriber, including any temporarily
assigned network address or associated
routing or transmission information;
(IV) the length of the provision of
service by such provider to the
customer or subscriber and the types of
services utilized by the customer or
subscriber;
(V) in the case of a provider of
local or long distance telephone
service, any local or long distance
telephone records of the customer or
subscriber;
(VI) if applicable, any records
reflecting period of usage (or
sessions) by the customer or
subscriber; and
(VII) any mechanisms and sources of
payment for such service, including the
number of any credit card or bank
account utilized for payment for such
service; and
(ii) if available, with respect to any
customer or subscriber of incoming or outgoing
communications to or from the service covered
by the order--
(I) the name of such customer or
subscriber;
(II) the address of such customer
or subscriber;
(III) the telephone or instrument
number, or other subscriber number or
identifier, of such customer or
subscriber, including any temporarily
assigned network address or associated
routing or transmission information;
and
(IV) the length of the provision of
service by such provider to such
customer or subscriber and the types of
services utilized by such customer or
subscriber.
(e)(1) Except as provided in paragraph (2), an order issued
under this section shall authorize the installation and use of
a pen register or trap and trace device for a period not to
exceed 90 days. Extensions of such an order may be granted, but
only upon an application for an order under this section and
upon the judicial finding required by subsection (d). The
period of extension shall be for a period not to exceed 90
days.
(2) In the case of an application under subsection (c)
where the applicant has certified that the information likely
to be obtained is foreign intelligence information not
concerning a United States person, an order, or an extension of
an order, under this section may be for a period not to exceed
one year.
(f) No cause of action shall lie in any court against any
provider of a wire or electronic communication service,
landlord, custodian, or other person (including any officer,
employee, agent, or other specified person thereof) that
furnishes any information, facilities, or technical assistance
under subsection (d) in accordance with the terms of an order
issued under this section.
(g) Unless otherwise ordered by the judge, the results of a
pen register or trap and trace device shall be furnished at
reasonable intervals during regular business hours for the
duration of the order to the authorized Government official or
officials.
(h) Privacy Procedures.--
(1) In general.--The Attorney General shall ensure
that appropriate policies and procedures are in place
to safeguard nonpublicly available information
concerning United States persons that is collected
through the use of a pen register or trap and trace
device installed under this section. Such policies and
procedures shall, to the maximum extent practicable and
consistent with the need to protect national security,
include privacy protections that apply to the
collection, retention, and use of information
concerning United States persons.
(2) Rule of construction.--Nothing in this
subsection limits the authority of the court
established under section 103(a) or of the Attorney
General to impose additional privacy or minimization
procedures with regard to the installation or use of a
pen register or trap and trace device.
authorization during emergencies
Sec. 403. (a) Notwithstanding any other provision of this
title, when the Attorney General makes a determination
described in subsection (b), the Attorney General may authorize
the installation and use of a pen register or trap and trace
device on an emergency basis to gather foreign intelligence
information not concerning a United States person or
information to protect against international terrorism or
clandestine intelligence activities, provided that such
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution if--
(1) a judge referred to in section 402(b) of this
Act is informed by the Attorney General or his designee
at the time of such authorization that the decision has
been made to install and use the pen register or trap
and trace device, as the case may be, on an emergency
basis; and
(2) an application in accordance with section 402
of this Act is made to such judge as soon as
practicable, but not more than 7 days, after the
Attorney General authorizes the installation and use of
the pen register or trap and trace device, as the case
may be, under this section.
(b) A determination under this subsection is a reasonable
determination by the Attorney General that--
(1) an emergency requires the installation and use
of a pen register or trap and trace device to obtain
foreign intelligence information not concerning a
United States person or information to protect against
international terrorism or clandestine intelligence
activities, provided that such investigation of a
United States person is not conducted solely upon the
basis of activities protected by the first amendment to
the Constitution before an order authorizing the
installation and use of the pen register or trap and
trace device, as the case may be, can with due
diligence be obtained under section 402 of this Act;
and
(2) the factual basis for issuance of an order
under such section 402 to approve the installation and
use of the pen register or trap and trace device, as
the case may be, exists.
(c)(1) In the absence of an order applied for under
subsection (a)(2) approving the installation and use of a pen
register or trap and trace device authorized under this
section, the installation and use of the pen register or trap
and trace device, as the case may be, shall terminate at the
earlier of--
(A) when the information sought is obtained;
(B) when the application for the order is denied
under section 402 of this Act; or
(C) 7 days after the time of the authorization by
the Attorney General.
(2) In the event that an application for an order applied
for under subsection (a)(2) is denied, or in any other case
where the installation and use of a pen register or trap and
trace device under this section is terminated and no order
under section 402 of this Act is issued approving the
installation and use of the pen register or trap and trace
device, as the case may be, no information obtained or evidence
derived from the use of the pen register or trap and trace
device, as the case may be, shall be received in evidence or
otherwise disclosed in any trial, hearing, or other proceeding
in or before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person acquired
from the use of the pen register or trap and trace device, as
the case may be, shall subsequently be used or disclosed in any
other manner by Federal officers or employees without the
consent of such person, except with the approval of the
Attorney General if the information indicates a threat of death
or serious bodily harm to any person.
(d) Privacy Procedures.--Information collected through the
use of a pen register or trap and trace device installed under
this section shall be subject to the policies and procedures
required under section 402(h).
* * * * * * *
congressional oversight
Sec. 406. (a) On a semiannual basis, the Attorney General
shall fully inform the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, and the Committee on
the Judiciary of the House of Representatives and the Committee
on the Judiciary of the Senate, concerning all uses of pen
registers and trap and trace devices pursuant to this title.
(b) On a semiannual basis, the Attorney General shall also
provide to the committees referred to in subsection (a) and to
the Committees on the Judiciary of the House of Representatives
and the Senate a report setting forth with respect to the
preceding 6-month period--
(1) the total number of applications made for
orders approving the use of pen registers or trap and
trace devices under this title;
(2) the total number of such orders either granted,
modified, or denied[; and];
(3) the total number of pen registers and trap and
trace devices whose installation and use was authorized
by the Attorney General on an emergency basis under
section 403, and the total number of subsequent orders
approving or denying the installation and use of such
pen registers and trap and trace devices[.];
(4) each department or agency on behalf of which
the Attorney General or a designated attorney for the
Government has made an application for an order
authorizing or approving the installation and use of a
pen register or trap and trace device under this title;
and
(5) for each department or agency described in
paragraph (4), each number described in paragraphs (1),
(2), and (3).
TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS.
(a)(1) Subject to paragraph (3), the Director of the
Federal Bureau of Investigation or a designee of the Director
(whose rank shall be no lower than Assistant Special Agent in
Charge) may make an application for an order requiring the
production of any tangible things (including books, records,
papers, documents, and other items) for an investigation to
obtain foreign intelligence information not concerning a United
States person or to protect against international terrorism or
clandestine intelligence activities, provided that such
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution.
(2) An investigation conducted under this section shall--
(A) be conducted under guidelines approved by the
Attorney General under Executive Order 12333 (or a
successor order); and
(B) not be conducted of a United States person
solely upon the basis of activities protected by the
first amendment to the Constitution of the United
States.
(3) In the case of an application for an order
requiring the production of library circulation
records, library patron lists, book sales records, book
customer lists, firearms sales records, tax return
records, educational records, or medical records
containing information that would identify a person,
the Director of the Federal Bureau of Investigation may
delegate the authority to make such application to
either the Deputy Director of the Federal Bureau of
Investigation or the Executive Assistant Director for
National Security (or any successor position). The
Deputy Director or the Executive Assistant Director may
not further delegate such authority.
(b) Each application under this section--
(1) shall be made to--
(A) a judge of the court established by
section 103(a); or
(B) a United States Magistrate Judge under
chapter 43 of title 28, United States Code, who
is publicly designated by the Chief Justice of
the United States to have the power to hear
applications and grant orders for the
production of tangible things under this
section on behalf of a judge of that court; and
(2) shall include--
(A) a specific selection term to be used as
the basis for the production of the tangible
things sought;
[(A) a statement] (B) in the case of an
application other than an application described
in subparagraph (C) (including an application
for the production of call detail records other
than in the manner described in subparagraph
(C)), a statement of facts showing that there
are reasonable grounds to believe that the
tangible things sought are relevant to an
authorized investigation (other than a threat
assessment) conducted in accordance with
subsection (a)(2) to obtain foreign
intelligence information not concerning a
United States person or to protect against
international terrorism or clandestine
intelligence activities, such things being
presumptively relevant to an authorized
investigation if the applicant shows in the
statement of the facts that they pertain to--
(i) a foreign power or an agent of
a foreign power;
(ii) the activities of a suspected
agent of a foreign power who is the
subject of such authorized
investigation; or
(iii) an individual in contact
with, or known to, a suspected agent of
a foreign power who is the subject of
such authorized investigation[; and];
(C) in the case of an application for the
production on an ongoing basis of call detail
records created before, on, or after the date
of the application relating to an authorized
investigation (other than a threat assessment)
conducted in accordance with subsection (a)(2)
to protect against international terrorism, a
statement of facts showing that--
(i) there are reasonable grounds to
believe that the call detail records
sought to be produced based on the
specific selection term required under
subparagraph (A) are relevant to such
investigation; and
(ii) there is a reasonable,
articulable suspicion that such
specific selection term is associated
with a foreign power engaged in
international terrorism or activities
in preparation therefor, or an agent of
a foreign power engaged in
international terrorism or activities
in preparation therefor; and
[(B)] (D) an enumeration of the
minimization procedures adopted by the Attorney
General under subsection (g) that are
applicable to the retention and dissemination
by the Federal Bureau of Investigation of any
tangible things to be made available to the
Federal Bureau of Investigation based on the
order requested in such application.
(c)(1) Upon an application made pursuant to this section,
if the judge finds that the application meets the requirements
of subsections (a) and (b) and that the minimization procedures
submitted in accordance with subsection (b)(2)(D) meet the
definition of minimization procedures under subsection (g), the
judge shall enter an ex parte order as requested, or as
modified, approving the release of tangible things. Such order
shall direct that minimization procedures adopted pursuant to
subsection (g) be followed.
(2) An order under this subsection--
(A) shall describe the tangible things that
are ordered to be produced with sufficient
particularity to permit them to be fairly
identified[;], including each specific
selection term to be used as the basis for the
production;
(B) shall include the date on which the
tangible things must be provided, which shall
allow a reasonable period of time within which
the tangible things can be assembled and made
available;
(C) shall provide clear and conspicuous
notice of the principles and procedures
described in subsection (d);
(D) may only require the production of a
tangible thing if such thing can be obtained
with a subpoena duces tecum issued by a court
of the United States in aid of a grand jury
investigation or with any other order issued by
a court of the United States directing the
production of records or tangible things[;
and];
(E) shall not disclose that such order is
issued for purposes of an investigation
described in subsection (a)[.]; and
(F) in the case of an application described
in subsection (b)(2)(C), shall--
(i) authorize the production on a
daily basis of call detail records for
a period not to exceed 180 days;
(ii) provide that an order for such
production may be extended upon
application under subsection (b) and
the judicial finding under paragraph
(1) of this subsection;
(iii) provide that the Government
may require the prompt production of a
first set of call detail records using
the specific selection term that
satisfies the standard required under
subsection (b)(2)(C)(ii);
(iv) provide that the Government
may require the prompt production of a
second set of call detail records using
session-identifying information or a
telephone calling card number
identified by the specific selection
term used to produce call detail
records under clause (iii);
(v) provide that, when produced,
such records be in a form that will be
useful to the Government;
(vi) direct each person the
Government directs to produce call
detail records under the order to
furnish the Government forthwith all
information, facilities, or technical
assistance necessary to accomplish the
production in such a manner as will
protect the secrecy of the production
and produce a minimum of interference
with the services that such person is
providing to each subject of the
production; and
(vii) direct the Government to--
(I) adopt minimization
procedures that require the
prompt destruction of all call
detail records produced under
the order that the Government
determines are not foreign
intelligence information; and
(II) destroy all call
detail records produced under
the order as prescribed by such
procedures.
(3) No order issued under this subsection may
authorize the collection of tangible things without the
use of a specific selection term that meets the
requirements of subsection (b)(2).
(d)(1) No person shall disclose to any other person that
the Federal Bureau of Investigation has sought or obtained
tangible things [pursuant to an order] pursuant to an order
issued or an emergency production required under this section,
other than to--
(A) those persons to whom disclosure is necessary
to comply with [such order] such order or such
emergency production;
(B) an attorney to obtain legal advice or
assistance with respect to the production of things in
response to [the order] the order or the emergency
production; or
(C) other persons as permitted by the Director of
the Federal Bureau of Investigation or the designee of
the Director.
(2)(A) A person to whom disclosure is made pursuant to
paragraph (1) shall be subject to the nondisclosure
requirements applicable to a person to whom [an order] an order
or emergency production is directed under this section in the
same manner as such person.
(B) Any person who discloses to a person described in
subparagraph (A), (B), or (C) of paragraph (1) that the Federal
Bureau of Investigation has sought or obtained tangible things
pursuant to [an order] an order or emergency production under
this section shall notify such person of the nondisclosure
requirements of this subsection.
(C) At the request of the Director of the Federal Bureau of
Investigation or the designee of the Director, any person
making or intending to make a disclosure under subparagraph (A)
or (C) of paragraph (1) shall identify to the Director or such
designee the person to whom such disclosure will be made or to
whom such disclosure was made prior to the request.
[(e) A person who, in good faith, produces tangible things
under an order pursuant to this section shall not be liable to
any other person for such production. Such production shall not
be deemed to constitute a waiver of any privilege in any other
proceeding or context.]
(e)(1) No cause of action shall lie in any court against a
person who--
(A) produces tangible things or provides
information, facilities, or technical assistance in
accordance with an order issued or an emergency
production required under this section; or
(B) otherwise provides technical assistance to the
Government under this section or to implement the
amendments made to this section by the USA FREEDOM Act
of 2015.
(2) A production or provision of information, facilities,
or technical assistance described in paragraph (1) shall not be
deemed to constitute a waiver of any privilege in any other
proceeding or context.
(f)(1) In this subsection--
(A) the term ``production order'' means an order to
produce any tangible thing under this section; and
(B) the term ``nondisclosure order'' means an order
imposed under subsection (d).
(2)(A)(i) A person receiving a production order may
challenge the legality of [that order] the production order or
any nondisclosure order imposed in connection with the
production order by filing a petition with the pool established
by section 103(e)(1). [Not less than 1 year after the date of
the issuance of the production order, the recipient of a
production order may challenge the nondisclosure order imposed
in connection with such production order by filing a petition
to modify or set aside such nondisclosure order, consistent
with the requirements of subparagraph (C), with the pool
established by section 103(e)(1).]
(ii) The presiding judge shall immediately assign a
petition under clause (i) to 1 of the judges serving in the
pool established by section 103(e)(1). Not later than 72 hours
after the assignment of such petition, the assigned judge shall
conduct an initial review of the petition. If the assigned
judge determines that the petition is frivolous, the assigned
judge shall immediately deny the petition and affirm the
production order or nondisclosure order. If the assigned judge
determines the petition is not frivolous, the assigned judge
shall promptly consider the petition in accordance with the
procedures established under section 103(e)(2).
(iii) The assigned judge shall promptly provide a written
statement for the record of the reasons for any determination
under this subsection. Upon the request of the Government, any
order setting aside a nondisclosure order shall be stayed
pending review pursuant to paragraph (3).
(B) A judge considering a petition to modify or set aside a
production order may grant such petition only if the judge
finds that such order does not meet the requirements of this
section or is otherwise unlawful. If the judge does not modify
or set aside the production order, the judge shall immediately
affirm such order, and order the recipient to comply therewith.
(C)(i) A judge considering a petition to modify or set
aside a nondisclosure order may grant such petition only if the
judge finds that there is no reason to believe that disclosure
may endanger the national security of the United States,
interfere with a criminal, counterterrorism, or
counterintelligence investigation, interfere with diplomatic
relations, or endanger the life or physical safety of any
person.
[(ii) If, upon filing of such a petition, the Attorney
General, Deputy Attorney General, an Assistant Attorney
General, or the Director of the Federal Bureau of Investigation
certifies that disclosure may endanger the national security of
the United States or interfere with diplomatic relations, such
certification shall be treated as conclusive, unless the judge
finds that the certification was made in bad faith.]
[(iii)] (ii) If the judge denies a petition to modify or
set aside a nondisclosure order, the recipient of such order
shall be precluded for a period of 1 year from filing another
such petition with respect to such nondisclosure order.
(D) Any production or nondisclosure order not explicitly
modified or set aside consistent with this subsection shall
remain in full effect.
(3) A petition for review of a decision under paragraph (2)
to affirm, modify, or set aside an order by the Government or
any person receiving such order shall be made to the court of
review established under section 103(b), which shall have
jurisdiction to consider such petitions. The court of review
shall provide for the record a written statement of the reasons
for its decision and, on petition by the Government or any
person receiving such order for writ of certiorari, the record
shall be transmitted under seal to the Supreme Court of the
United States, which shall have jurisdiction to review such
decision.
(4) Judicial proceedings under this subsection shall be
concluded as expeditiously as possible. The record of
proceedings, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures established by the Chief Justice of the
United States, in consultation with the Attorney General and
the Director of National Intelligence.
(5) All petitions under this subsection shall be filed
under seal. In any proceedings under this subsection, the court
shall, upon request of the Government, review ex parte and in
camera any Government submission, or portions thereof, which
may include classified information.
(g) Minimization Procedures.--
(1) In general.--[Not later than 180 days after the
date of the enactment of the USA PATRIOT Improvement
and Reauthorization Act of 2005, the] The Attorney
General shall adopt, and update as appropriate,
specific minimization procedures governing the
retention and dissemination by the Federal Bureau of
Investigation of any tangible things, or information
therein, received by the Federal Bureau of
Investigation in response to an order under this title.
(2) Defined.--In this section, the term
``minimization procedures'' means--
(A) specific procedures that are reasonably
designed in light of the purpose and technique
of an order for the production of tangible
things, to minimize the retention, and prohibit
the dissemination, of nonpublicly available
information concerning unconsenting United
States persons consistent with the need of the
United States to obtain, produce, and
disseminate foreign intelligence information;
(B) procedures that require that
nonpublicly available information, which is not
foreign intelligence information, as defined in
section 101(e)(1), shall not be disseminated in
a manner that identifies any United States
person, without such person's consent, unless
such person's identity is necessary to
understand foreign intelligence information or
assess its importance; and
(C) notwithstanding subparagraphs (A) and
(B), procedures that allow for the retention
and dissemination of information that is
evidence of a crime which has been, is being,
or is about to be committed and that is to be
retained or disseminated for law enforcement
purposes.
(3) Rule of construction.--Nothing in this
subsection shall limit the authority of the court
established under section 103(a) to impose additional,
particularized minimization procedures with regard to
the production, retention, or dissemination of
nonpublicly available information concerning
unconsenting United States persons, including
additional, particularized procedures related to the
destruction of information within a reasonable time
period.
(h) Use of Information.--Information acquired from tangible
things received by the Federal Bureau of Investigation in
response to an order under this title concerning any United
States person may be used and disclosed by Federal officers and
employees without the consent of the United States person only
in accordance with the minimization procedures adopted pursuant
to subsection (g). No otherwise privileged information acquired
from tangible things received by the Federal Bureau of
Investigation in accordance with the provisions of this title
shall lose its privileged character. No information acquired
from tangible things received by the Federal Bureau of
Investigation in response to an order under this title may be
used or disclosed by Federal officers or employees except for
lawful purposes.
(i) Emergency Authority for Production of Tangible
Things.--
(1) Notwithstanding any other provision of this
section, the Attorney General may require the emergency
production of tangible things if the Attorney General--
(A) reasonably determines that an emergency
situation requires the production of tangible
things before an order authorizing such
production can with due diligence be obtained;
(B) reasonably determines that the factual
basis for the issuance of an order under this
section to approve such production of tangible
things exists;
(C) informs, either personally or through a
designee, a judge having jurisdiction under
this section at the time the Attorney General
requires the emergency production of tangible
things that the decision has been made to
employ the authority under this subsection; and
(D) makes an application in accordance with
this section to a judge having jurisdiction
under this section as soon as practicable, but
not later than 7 days after the Attorney
General requires the emergency production of
tangible things under this subsection.
(2) If the Attorney General requires the emergency
production of tangible things under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this section for the issuance of
a judicial order be followed.
(3) In the absence of a judicial order approving
the production of tangible things under this
subsection, the production shall terminate when the
information sought is obtained, when the application
for the order is denied, or after the expiration of 7
days from the time the Attorney General begins
requiring the emergency production of such tangible
things, whichever is earliest.
(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
(5) If such application for approval is denied, or
in any other case where the production of tangible
things is terminated and no order is issued approving
the production, no information obtained or evidence
derived from such production shall be received in
evidence or otherwise disclosed in any trial, hearing,
or other proceeding in or before any court, grand jury,
department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or a political subdivision thereof,
and no information concerning any United States person
acquired from such production shall subsequently be
used or disclosed in any other manner by Federal
officers or employees without the consent of such
person, except with the approval of the Attorney
General if the information indicates a threat of death
or serious bodily harm to any person.
(6) The Attorney General shall assess compliance
with the requirements of paragraph (5).
(j) Compensation.--The Government shall compensate a person
for reasonable expenses incurred for--
(1) producing tangible things or providing
information, facilities, or assistance in accordance
with an order issued with respect to an application
described in subsection (b)(2)(C) or an emergency
production under subsection (i) that, to comply with
subsection (i)(1)(D), requires an application described
in subsection (b)(2)(C); or
(2) otherwise providing technical assistance to the
Government under this section or to implement the
amendments made to this section by the USA FREEDOM Act
of 2015.
(k) Definitions.--In this section:
(1) In general.--The terms ``foreign power'',
``agent of a foreign power'', ``international
terrorism'', ``foreign intelligence information'',
``Attorney General'', ``United States person'',
``United States'', ``person'', and ``State'' have the
meanings provided those terms in section 101.
(2) Address.--The term ``address'' means a physical
address or electronic address, such as an electronic
mail address or temporarily assigned network address
(including an Internet protocol address).
(3) Call detail record.--The term ``call detail
record''--
(A) means session-identifying information
(including an originating or terminating
telephone number, an International Mobile
Subscriber Identity number, or an International
Mobile Station Equipment Identity number), a
telephone calling card number, or the time or
duration of a call; and
(B) does not include--
(i) the contents (as defined in
section 2510(8) of title 18, United
States Code) of any communication;
(ii) the name, address, or
financial information of a subscriber
or customer; or
(iii) cell site location or global
positioning system information.
(4) Specific selection term.--
(A) Tangible things.--
(i) In general.--Except as provided
in subparagraph (B), a ``specific
selection term''--
(I) is a term that
specifically identifies a
person, account, address, or
personal device, or any other
specific identifier; and
(II) is used to limit, to
the greatest extent reasonably
practicable, the scope of
tangible things sought
consistent with the purpose for
seeking the tangible things.
(ii) Limitation.--A specific
selection term under clause (i) does
not include an identifier that does not
limit, to the greatest extent
reasonably practicable, the scope of
tangible things sought consistent with
the purpose for seeking the tangible
things, such as an identifier that--
(I) identifies an
electronic communication
service provider (as that term
is defined in section 701) or a
provider of remote computing
service (as that term is
defined in section 2711 of
title 18, United States Code),
when not used as part of a
specific identifier as
described in clause (i), unless
the provider is itself a
subject of an authorized
investigation for which the
specific selection term is used
as the basis for the
production; or
(II) identifies a broad
geographic region, including
the United States, a city, a
county, a State, a zip code, or
an area code, when not used as
part of a specific identifier
as described in clause (i).
(iii) Rule of construction.--
Nothing in this paragraph shall be
construed to preclude the use of
multiple terms or identifiers to meet
the requirements of clause (i).
(B) Call detail record applications.--For
purposes of an application submitted under
subsection (b)(2)(C), the term ``specific
selection term'' means a term that specifically
identifies an individual, account, or personal
device.
SEC. 502. CONGRESSIONAL OVERSIGHT.
(a) On an annual basis, the Attorney General shall fully
inform the [Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the Senate]
Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary of
the Senate concerning all requests for the production of
tangible things under section 501.
(b) In April of each year, the Attorney General shall
submit to the House and Senate Committees on the Judiciary and
the House Permanent Select Committee on Intelligence and the
Senate Select Committee on Intelligence a report setting forth
with respect to the preceding calendar year--
(1) a summary of all compliance reviews conducted
by the Government for the production of tangible things
under section 501;
(2) the total number of applications described in
section 501(b)(2)(B) made for orders approving requests
for the production of tangible things;
(3) the total number of such orders either granted,
modified, or denied;
(4) the total number of applications described in
section 501(b)(2)(C) made for orders approving requests
for the production of call detail records;
(5) the total number of such orders either granted,
modified, or denied;
[(1)] (6) the total number of applications made for
orders approving requests for the production of
tangible things under section 501;
[(2)] (7) the total number of such orders either
granted, modified, or denied; and
[(3)] (8) the number of such orders either granted,
modified, or denied for the production of each of the
following:
(A) Library circulation records, library
patron lists, book sales records, or book
customer lists.
(B) Firearms sales records.
(C) Tax return records.
(D) Educational records.
(E) Medical records containing information
that would identify a person.
(c)(1) 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; [and]
(B) the total number of such orders either granted,
modified, or denied[.];
(C) the total number of applications made for
orders approving requests for the production of
tangible things under section 501 in which the specific
selection term does not specifically identify an
individual, account, or personal device;
(D) the total number of orders described in
subparagraph (C) either granted, modified, or denied;
and
(E) with respect to orders described in
subparagraph (D) that have been granted or modified,
whether the court established under section 103 has
directed additional, particularized minimization
procedures beyond those adopted pursuant to section
501(g).
(2) Each report under this subsection shall be submitted in
unclassified form.
* * * * * * *
TITLE VI--[REPORTING REQUIREMENT] OVERSIGHT
SEC. 601. SEMIANNUAL REPORT OF THE ATTORNEY GENERAL.
(a) Report.--On a semiannual basis, the Attorney General
shall submit to the Permanent Select Committee on Intelligence
of the House of Representatives, the Select Committee on
Intelligence of the Senate, and the Committees on the Judiciary
of the House of Representatives and the Senate, in a manner
consistent with the protection of the national security, a
report setting forth with respect to the preceding 6-month
period--
(1) the aggregate number of persons targeted for
orders issued under this Act, including a breakdown of
those targeted for--
(A) electronic surveillance under section
105;
(B) physical searches under section 304;
(C) pen registers under section 402;
(D) access to records under section 501;
(E) acquisitions under section 703; and
(F) acquisitions under section 704;
(2) the number of individuals covered by an order
issued pursuant to section 101(b)(1)(C);
(3) the number of times that the Attorney General
has authorized that information obtained under this Act
may be used in a criminal proceeding or any information
derived therefrom may be used in a criminal proceeding;
(4) a summary of significant legal interpretations
of this Act involving matters before the Foreign
Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review, including
interpretations presented in applications or pleadings
filed with the Foreign Intelligence Surveillance Court
or the Foreign Intelligence Surveillance Court of
Review by the Department of Justice; and
(5) copies of all decisions, orders, or opinions of
the Foreign Intelligence Surveillance Court or Foreign
Intelligence Surveillance Court of Review that include
significant construction or interpretation of the
provisions of this Act.
(b) Frequency.--The first report under this section shall
be submitted not later than 6 months after the date of
enactment of this section. Subsequent reports under this
section shall be submitted semi-annually thereafter.
(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in subsection
(a)--
[(1) a copy of any decision, order, or opinion
issued by the Foreign Intelligence Surveillance Court
or the Foreign Intelligence Surveillance Court of
Review that includes significant construction or
interpretation of any provision of this Act, and any
pleadings, applications, or memoranda of law associated
with such decision, order, or opinion, not later than
45 days after such decision, order, or opinion is
issued; and]
(1) not later than 45 days after the date on which
the Foreign Intelligence Surveillance Court or the
Foreign Intelligence Surveillance Court of Review
issues a decision, order, or opinion, including any
denial or modification of an application under this
Act, that includes significant construction or
interpretation of any provision of law or results in a
change of application of any provision of this Act or a
novel application of any provision of this Act, a copy
of such decision, order, or opinion and any pleadings,
applications, or memoranda of law associated with such
decision, order, or opinion; and
(2) a copy of each such decision, order, or
opinion, and any pleadings, applications, or memoranda
of law associated with such decision, order, or
opinion, that was issued during the 5-year period
ending on the date of the enactment of the FISA
Amendments Act of 2008 and not previously submitted in
a report under subsection (a).
(d) Protection of National Security.--The Attorney General,
in consultation with the Director of National Intelligence, may
authorize redactions of materials described in subsection (c)
that are provided to the committees of Congress referred to in
subsection (a), if such redactions are necessary to protect the
national security of the United States and are limited to
sensitive sources and methods information or the identities of
targets.
(e) Definitions.--In this section:
(1) Foreign intelligence surveillance court.--The
term ``Foreign Intelligence Surveillance Court'' means
the court established under section 103(a).
(2) Foreign intelligence surveillance court of
review.--The term ``Foreign Intelligence Surveillance
Court of Review'' means the court established under
section 103(b).
SEC. 602. DECLASSIFICATION OF SIGNIFICANT DECISIONS, ORDERS, AND
OPINIONS.
(a) Declassification Required.--Subject to subsection (b),
the Director of National Intelligence, in consultation with the
Attorney General, shall conduct a declassification review of
each decision, order, or opinion issued by the Foreign
Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review (as defined in section 601(e))
that includes a significant construction or interpretation of
any provision of law, including any novel or significant
construction or interpretation of the term ``specific selection
term'', and, consistent with that review, make publicly
available to the greatest extent practicable each such
decision, order, or opinion.
(b) Redacted Form.--The Director of National Intelligence,
in consultation with the Attorney General, may satisfy the
requirement under subsection (a) to make a decision, order, or
opinion described in such subsection publicly available to the
greatest extent practicable by making such decision, order, or
opinion publicly available in redacted form.
(c) National Security Waiver.--The Director of National
Intelligence, in consultation with the Attorney General, may
waive the requirement to declassify and make publicly available
a particular decision, order, or opinion under subsection (a),
if--
(1) the Director of National Intelligence, in
consultation with the Attorney General, determines that
a waiver of such requirement is necessary to protect
the national security of the United States or properly
classified intelligence sources or methods; and
(2) the Director of National Intelligence makes
publicly available an unclassified statement prepared
by the Attorney General, in consultation with the
Director of National Intelligence--
(A) summarizing the significant
construction or interpretation of any provision
of law, which shall include, to the extent
consistent with national security, a
description of the context in which the matter
arises and any significant construction or
interpretation of any statute, constitutional
provision, or other legal authority relied on
by the decision; and
(B) that specifies that the statement has
been prepared by the Attorney General and
constitutes no part of the opinion of the
Foreign Intelligence Surveillance Court or the
Foreign Intelligence Surveillance Court of
Review.
SEC. 603. ANNUAL REPORTS.
(a) Report by Director of the Administrative Office of the
United States Courts.--
(1) Report required.--The Director of the
Administrative Office of the United States Courts shall
annually submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the
House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the
Senate, subject to a declassification review by the
Attorney General and the Director of National
Intelligence, a report that includes--
(A) the number of applications or
certifications for orders submitted under each
of sections 105, 304, 402, 501, 702, 703, and
704;
(B) the number of such orders granted under
each of those sections;
(C) the number of orders modified under
each of those sections;
(D) the number of applications or
certifications denied under each of those
sections;
(E) the number of appointments of an
individual to serve as amicus curiae under
section 103, including the name of each
individual appointed to serve as amicus curiae;
and
(F) the number of findings issued under
section 103(i) that such appointment is not
appropriate and the text of any such findings.
(2) Publication.--The Director shall make the
report required under paragraph (1) publicly available
on an Internet Web site, except that the Director shall
not make publicly available on an Internet Web site the
findings described in subparagraph (F) of paragraph
(1).
(b) Mandatory Reporting by Director of National
Intelligence.--Except as provided in subsection (d), the
Director of National Intelligence shall annually make publicly
available on an Internet Web site a report that identifies, for
the preceding 12-month period--
(1) the total number of orders issued pursuant to
titles I and III and sections 703 and 704 and a good
faith estimate of the number of targets of such orders;
(2) the total number of orders issued pursuant to
section 702 and a good faith estimate of--
(A) the number of search terms concerning a
known United States person used to retrieve the
unminimized contents of electronic
communications or wire communications obtained
through acquisitions authorized under such
section, excluding the number of search terms
used to prevent the return of information
concerning a United States person; and
(B) the number of queries concerning a
known United States person of unminimized
noncontents information relating to electronic
communications or wire communications obtained
through acquisitions authorized under such
section, excluding the number of queries
containing information used to prevent the
return of information concerning a United
States person;
(3) the total number of orders issued pursuant to
title IV and a good faith estimate of--
(A) the number of targets of such orders;
and
(B) the number of unique identifiers used
to communicate information collected pursuant
to such orders;
(4) the total number of orders issued pursuant to
applications made under section 501(b)(2)(B) and a good
faith estimate of--
(A) the number of targets of such orders;
and
(B) the number of unique identifiers used
to communicate information collected pursuant
to such orders;
(5) the total number of orders issued pursuant to
applications made under section 501(b)(2)(C) and a good
faith estimate of--
(A) the number of targets of such orders;
(B) the number of unique identifiers used
to communicate information collected pursuant
to such orders; and
(C) the number of search terms that
included information concerning a United States
person that were used to query any database of
call detail records obtained through the use of
such orders; and
(6) the total number of national security letters
issued and the number of requests for information
contained within such national security letters.
(c) Timing.--The annual reports required by subsections (a)
and (b) shall be made publicly available during April of each
year and include information relating to the previous calendar
year.
(d) Exceptions.--
(1) Statement of numerical range.--If a good faith
estimate required to be reported under subparagraph (B)
of any of paragraphs (3), (4), or (5) of subsection (b)
is fewer than 500, it shall be expressed as a numerical
range of ``fewer than 500'' and shall not be expressed
as an individual number.
(2) Nonapplicability to certain information.--
(A) Federal bureau of investigation.--
Paragraphs (2)(A), (2)(B), and (5)(C) of
subsection (b) shall not apply to information
or records held by, or queries conducted by,
the Federal Bureau of Investigation.
(B) Electronic mail address and telephone
numbers.--Paragraph (3)(B) of subsection (b)
shall not apply to orders resulting in the
acquisition of information by the Federal
Bureau of Investigation that does not include
electronic mail addresses or telephone numbers.
(3) Certification.--
(A) In general.--If the Director of
National Intelligence concludes that a good
faith estimate required to be reported under
subsection (b)(2)(B) cannot be determined
accurately because some but not all of the
relevant elements of the intelligence community
are able to provide such good faith estimate,
the Director shall--
(i) certify that conclusion in
writing to the Select Committee on
Intelligence and the Committee on the
Judiciary of the Senate and the
Permanent Select Committee on
Intelligence and the Committee on the
Judiciary of the House of
Representatives;
(ii) report the good faith estimate
for those relevant elements able to
provide such good faith estimate;
(iii) explain when it is reasonably
anticipated that such an estimate will
be able to be determined fully and
accurately; and
(iv) make such certification
publicly available on an Internet Web
site.
(B) Form.--A certification described in
subparagraph (A) shall be prepared in
unclassified form, but may contain a classified
annex.
(C) Timing.--If the Director of National
Intelligence continues to conclude that the
good faith estimates described in this
paragraph cannot be determined accurately, the
Director shall annually submit a certification
in accordance with this paragraph.
(e) Definitions.--In this section:
(1) Contents.--The term ``contents'' has the
meaning given that term under section 2510 of title 18,
United States Code.
(2) Electronic communication.--The term
``electronic communication'' has the meaning given that
term under section 2510 of title 18, United States
Code.
(3) National security letter.--The term ``national
security letter'' means a request for a report,
records, or other information under--
(A) section 2709 of title 18, United States
Code;
(B) section 1114(a)(5)(A) of the Right to
Financial Privacy Act of 1978 (12 U.S.C.
3414(a)(5)(A));
(C) subsection (a) or (b) of section 626 of
the Fair Credit Reporting Act (15 U.S.C.
1681u(a), 1681u(b)); or
(D) section 627(a) of the Fair Credit
Reporting Act (15 U.S.C. 1681v(a)).
(4) 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) of the Immigration and
Nationality Act (8 U.S.C. 1101(a))).
(5) Wire communication.--The term ``wire
communication'' has the meaning given that term under
section 2510 of title 18, United States Code.
SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO ORDERS.
(a) Reporting.--A person subject to a nondisclosure
requirement accompanying an order or directive under this Act
or a national security letter may, with respect to such order,
directive, or national security letter, publicly report the
following information using one of the following structures:
(1) A semiannual report that aggregates the number
of orders, directives, or national security letters
with which the person was required to comply into
separate categories of--
(A) the number of national security letters
received, reported in bands of 1000 starting
with 0-999;
(B) the number of customer selectors
targeted by national security letters, reported
in bands of 1000 starting with 0-999;
(C) the number of orders or directives
received, combined, under this Act for
contents, reported in bands of 1000 starting
with 0-999;
(D) the number of customer selectors
targeted under orders or directives received,
combined, under this Act for contents reported
in bands of 1000 starting with 0-999;
(E) the number of orders received under
this Act for noncontents, reported in bands of
1000 starting with 0-999; and
(F) the number of customer selectors
targeted under orders under this Act for
noncontents, reported in bands of 1000 starting
with 0-999, pursuant to--
(i) title IV;
(ii) title V with respect to
applications described in section
501(b)(2)(B); and
(iii) title V with respect to
applications described in section
501(b)(2)(C).
(2) A semiannual report that aggregates the number
of orders, directives, or national security letters
with which the person was required to comply into
separate categories of--
(A) the number of national security letters
received, reported in bands of 500 starting
with 0-499;
(B) the number of customer selectors
targeted by national security letters, reported
in bands of 500 starting with 0-499;
(C) the number of orders or directives
received, combined, under this Act for
contents, reported in bands of 500 starting
with 0-499;
(D) the number of customer selectors
targeted under orders or directives received,
combined, under this Act for contents, reported
in bands of 500 starting with 0-499;
(E) the number of orders received under
this Act for noncontents, reported in bands of
500 starting with 0-499; and
(F) the number of customer selectors
targeted under orders received under this Act
for noncontents, reported in bands of 500
starting with 0-499.
(3) A semiannual report that aggregates the number
of orders, directives, or national security letters
with which the person was required to comply in the
into separate categories of--
(A) the total number of all national
security process received, including all
national security letters, and orders or
directives under this Act, combined, reported
in bands of 250 starting with 0-249; and
(B) the total number of customer selectors
targeted under all national security process
received, including all national security
letters, and orders or directives under this
Act, combined, reported in bands of 250
starting with 0-249.
(4) An annual report that aggregates the number of
orders, directives, and national security letters the
person was required to comply with into separate
categories of--
(A) the total number of all national
security process received, including all
national security letters, and orders or
directives under this Act, combined, reported
in bands of 100 starting with 0-99; and
(B) the total number of customer selectors
targeted under all national security process
received, including all national security
letters, and orders or directives under this
Act, combined, reported in bands of 100
starting with 0-99.
(b) Period of Time Covered by Reports.--
(1) A report described in paragraph (1) or (2) of
subsection (a) shall include only information--
(A) relating to national security letters
for the previous 180 days; and
(B) relating to authorities under this Act
for the 180-day period of time ending on the
date that is not less than 180 days prior to
the date of the publication of such report,
except that with respect to a platform,
product, or service for which a person did not
previously receive an order or directive (not
including an enhancement to or iteration of an
existing publicly available platform, product,
or service) such report shall not include any
information relating to such new order or
directive until 540 days after the date on
which such new order or directive is received.
(2) A report described in paragraph (3) of
subsection (a) shall include only information relating
to the previous 180 days.
(3) A report described in paragraph (4) of
subsection (a) shall include only information for the
1-year period of time ending on the date that is not
less than 1 year prior to the date of the publication
of such report.
(c) Other Forms of Agreed to Publication.--Nothing in this
section prohibits the Government and any person from jointly
agreeing to the publication of information referred to in this
subsection in a time, form, or manner other than as described
in this section.
(d) Definitions.--In this section:
(1) Contents.--The term ``contents'' has the
meaning given that term under section 2510 of title 18,
United States Code.
(2) National security letter.--The term ``national
security letter'' has the meaning given that term under
section 603.
TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE THE
UNITED STATES
* * * * * * *
SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS.
(a) Authorization.--Notwithstanding any other provision of
law, upon the issuance of an order in accordance with
subsection (i)(3) or a determination under subsection (c)(2),
the Attorney General and the Director of National Intelligence
may authorize jointly, for a period of up to 1 year from the
effective date of the authorization, the targeting of persons
reasonably believed to be located outside the United States to
acquire foreign intelligence information.
(b) Limitations.--An acquisition authorized under
subsection (a)--
(1) may not intentionally target any person known
at the time of acquisition to be located in the United
States;
(2) may not intentionally target a person
reasonably believed to be located outside the United
States if the purpose of such acquisition is to target
a particular, known person reasonably believed to be in
the United States;
(3) may not intentionally target a United States
person reasonably believed to be located outside the
United States;
(4) may not intentionally acquire 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; and
(5) shall be conducted in a manner consistent with
the fourth amendment to the Constitution of the United
States.
(c) Conduct of Acquisition.--
(1) In general.--An acquisition authorized under
subsection (a) shall be conducted only in accordance
with--
(A) the targeting and minimization
procedures adopted in accordance with
subsections (d) and (e); and
(B) upon submission of a certification in
accordance with subsection (g), such
certification.
(2) Determination.--A determination under this
paragraph and for purposes of subsection (a) is a
determination by the Attorney General and the Director
of National Intelligence that exigent circumstances
exist because, without immediate implementation of an
authorization under subsection (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 subsection
(i)(3) prior to the implementation of such
authorization.
(3) Timing of determination.--The Attorney General
and the Director of National Intelligence may make the
determination under paragraph (2)--
(A) before the submission of a
certification in accordance with subsection
(g); or
(B) by amending a certification pursuant to
subsection (i)(1)(C) at any time during which
judicial review under subsection (i) of such
certification is pending.
(4) Construction.--Nothing in title I shall be
construed to require an application for a court order
under such title for an acquisition that is targeted in
accordance with this section at a person reasonably
believed to be located outside the United States.
(d) Targeting Procedures.--
(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National
Intelligence, shall adopt targeting procedures that are
reasonably designed to--
(A) ensure that any acquisition authorized
under subsection (a) is limited to targeting
persons reasonably believed to be located
outside the United States; and
(B) 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.
(2) Judicial review.--The procedures adopted in
accordance with paragraph (1) shall be subject to
judicial review pursuant to subsection (i).
(e) Minimization Procedures.--
(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National
Intelligence, shall adopt minimization procedures that
meet the definition of minimization procedures under
section 101(h) or 301(4), as appropriate, for
acquisitions authorized under subsection (a).
(2) Judicial review.--The minimization procedures
adopted in accordance with paragraph (1) shall be
subject to judicial review pursuant to subsection (i).
(f) Guidelines for Compliance With Limitations.--
(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National
Intelligence, shall adopt guidelines to ensure--
(A) compliance with the limitations in
subsection (b); and
(B) that an application for a court order
is filed as required by this Act.
(2) Submission of guidelines.--The Attorney General
shall provide the guidelines adopted in accordance with
paragraph (1) to--
(A) the congressional intelligence
committees;
(B) the Committees on the Judiciary of the
Senate and the House of Representatives; and
(C) the Foreign Intelligence Surveillance
Court.
(g) Certification.--
(1) In general.--
(A) Requirement.--Subject to subparagraph
(B), prior to the implementation of an
authorization under subsection (a), the
Attorney General and the Director of National
Intelligence shall provide to the Foreign
Intelligence Surveillance Court a written
certification and any supporting affidavit,
under oath and under seal, in accordance with
this subsection.
(B) Exception.--If the Attorney General and
the Director of National Intelligence make a
determination under subsection (c)(2) and time
does not permit the submission of a
certification under this subsection prior to
the implementation of an authorization under
subsection (a), the Attorney General and the
Director of National Intelligence shall submit
to the Court a certification for such
authorization as soon as practicable but in no
event later than 7 days after such
determination is made.
(2) Requirements.--A certification made under this
subsection shall--
(A) attest that--
(i) there are procedures in place
that have been approved, have been
submitted for approval, or will be
submitted with the certification for
approval by the Foreign Intelligence
Surveillance Court that are reasonably
designed to--
(I) ensure that an
acquisition authorized under
subsection (a) is limited to
targeting persons reasonably
believed to be located outside
the United States; and
(II) 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;
(ii) the minimization procedures to
be used with respect to such
acquisition--
(I) meet the definition of
minimization procedures under
section 101(h) or 301(4), as
appropriate; and
(II) have been approved,
have been submitted for
approval, or will be submitted
with the certification for
approval by the Foreign
Intelligence Surveillance
Court;
(iii) guidelines have been adopted
in accordance with subsection (f) to
ensure compliance with the limitations
in subsection (b) and to ensure that an
application for a court order is filed
as required by this Act;
(iv) the procedures and guidelines
referred to in clauses (i), (ii), and
(iii) are consistent with the
requirements of the fourth amendment to
the Constitution of the United States;
(v) a significant purpose of the
acquisition is to obtain foreign
intelligence information;
(vi) the acquisition involves
obtaining foreign intelligence
information from or with the assistance
of an electronic communication service
provider; and
(vii) the acquisition complies with
the limitations in subsection (b);
(B) include the procedures adopted in
accordance with subsections (d) and (e);
(C) be supported, as appropriate, by the
affidavit of any appropriate official in the
area of national security who is--
(i) appointed by the President, by
and with the advice and consent of the
Senate; or
(ii) the head of an element of the
intelligence community;
(D) include--
(i) an effective date for the
authorization that is at least 30 days
after the submission of the written
certification to the court; or
(ii) if the acquisition has begun
or the effective date is less than 30
days after the submission of the
written certification to the court, the
date the acquisition began or the
effective date for the acquisition; and
(E) if the Attorney General and the
Director of National Intelligence make a
determination under subsection (c)(2), include
a statement that such determination has been
made.
(3) Change in effective date.--The Attorney General
and the Director of National Intelligence may advance
or delay the effective date referred to in paragraph
(2)(D) by submitting an amended certification in
accordance with subsection (i)(1)(C) to the Foreign
Intelligence Surveillance Court for review pursuant to
subsection (i).
(4) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which an
acquisition authorized under subsection (a) will be
directed or conducted.
(5) Maintenance of certification.--The Attorney
General or a designee of the Attorney General shall
maintain a copy of a certification made under this
subsection.
(6) Review.--A certification submitted in
accordance with this subsection shall be subject to
judicial review pursuant to subsection (i).
(h) Directives and Judicial Review of Directives.--
(1) Authority.--With respect to an acquisition
authorized under subsection (a), the Attorney General
and the Director of National Intelligence may direct,
in writing, an electronic communication service
provider to--
(A) immediately provide the Government with
all information, facilities, or assistance
necessary to accomplish the acquisition in a
manner that will protect the secrecy of the
acquisition and produce a minimum of
interference with the services that such
electronic communication service provider is
providing to the target of the acquisition; and
(B) maintain under security procedures
approved by the Attorney General and the
Director of National Intelligence any records
concerning the acquisition or the aid furnished
that such electronic communication service
provider wishes to maintain.
(2) Compensation.--The Government shall compensate,
at the prevailing rate, an electronic communication
service provider for providing information, facilities,
or assistance in accordance with a directive issued
pursuant to paragraph (1).
(3) Release from liability.--No cause of action
shall lie in any court against any electronic
communication service provider for providing any
information, facilities, or assistance in accordance
with a directive issued pursuant to paragraph (1).
(4) Challenging of directives.--
(A) Authority to challenge.--An electronic
communication service provider receiving a
directive issued pursuant to paragraph (1) may
file a petition to modify or set aside such
directive with the Foreign Intelligence
Surveillance Court, which shall have
jurisdiction to review such petition.
(B) Assignment.--The presiding judge of the
Court shall assign a petition filed under
subparagraph (A) to 1 of the judges serving in
the pool established under section 103(e)(1)
not later than 24 hours after the filing of
such petition.
(C) Standards for review.--A judge
considering a petition filed under subparagraph
(A) may grant such petition only if the judge
finds that the directive does not meet the
requirements of this section, or is otherwise
unlawful.
(D) Procedures for initial review.--A judge
shall conduct an initial review of a petition
filed under subparagraph (A) not later than 5
days after being assigned such petition. If the
judge determines that such petition does not
consist of claims, defenses, or other legal
contentions that are warranted by existing law
or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for
establishing new law, the judge shall
immediately deny such petition and affirm the
directive or any part of the directive that is
the subject of such petition and order the
recipient to comply with the directive or any
part of it. Upon making a determination under
this subparagraph or promptly thereafter, the
judge shall provide a written statement for the
record of the reasons for such determination.
(E) Procedures for plenary review.--If a
judge determines that a petition filed under
subparagraph (A) requires plenary review, the
judge shall affirm, modify, or set aside the
directive that is the subject of such petition
not later than 30 days after being assigned
such petition. If the judge does not set aside
the directive, the judge shall immediately
affirm or affirm with modifications the
directive, and order the recipient to comply
with the directive in its entirety or as
modified. The judge shall provide a written
statement for the record of the reasons for a
determination under this subparagraph.
(F) Continued effect.--Any directive not
explicitly modified or set aside under this
paragraph shall remain in full effect.
(G) Contempt of court.--Failure to obey an
order issued under this paragraph may be
punished by the Court as contempt of court.
(5) Enforcement of directives.--
(A) Order to compel.--If an electronic
communication service provider fails to comply
with a directive issued pursuant to paragraph
(1), the Attorney General may file a petition
for an order to compel the electronic
communication service provider to comply with
the directive with the Foreign Intelligence
Surveillance Court, which shall have
jurisdiction to review such petition.
(B) Assignment.--The presiding judge of the
Court shall assign a petition filed under
subparagraph (A) to 1 of the judges serving in
the pool established under section 103(e)(1)
not later than 24 hours after the filing of
such petition.
(C) Procedures for review.--A judge
considering a petition filed under subparagraph
(A) shall, not later than 30 days after being
assigned such petition, issue an order
requiring the electronic communication service
provider to comply with the directive or any
part of it, as issued or as modified, if the
judge finds that the directive meets the
requirements of this section and is otherwise
lawful. The judge shall provide a written
statement for the record of the reasons for a
determination under this paragraph.
(D) Contempt of court.--Failure to obey an
order issued under this paragraph may be
punished by the Court as contempt of court.
(E) Process.--Any process under this
paragraph may be served in any judicial
district in which the electronic communication
service provider may be found.
(6) Appeal.--
(A) Appeal to the court of review.--The
Government or an electronic communication
service provider receiving a directive issued
pursuant to paragraph (1) may file a petition
with the Foreign Intelligence Surveillance
Court of Review for review of a decision issued
pursuant to paragraph (4) or (5). The Court of
Review shall have jurisdiction to consider such
petition and shall provide a written statement
for the record of the reasons for a decision
under this subparagraph.
(B) Certiorari to the supreme court.--The
Government or an electronic communication
service provider receiving a directive issued
pursuant to paragraph (1) may file a petition
for a writ of certiorari for review of a
decision of the Court of Review issued under
subparagraph (A). The record for such review
shall be transmitted under seal to the Supreme
Court of the United States, which shall have
jurisdiction to review such decision.
(i) Judicial Review of Certifications and Procedures.--
(1) In general.--
(A) Review by the foreign intelligence
surveillance court.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to
review a certification submitted in accordance
with subsection (g) and the targeting and
minimization procedures adopted in accordance
with subsections (d) and (e), and amendments to
such certification or such procedures.
(B) Time period for review.--The Court
shall review a certification submitted in
accordance with subsection (g) and the
targeting and minimization procedures adopted
in accordance with subsections (d) and (e) and
shall complete such review and issue an order
under paragraph (3) not later than 30 days
after the date on which such certification and
such procedures are submitted.
(C) Amendments.--The Attorney General and
the Director of National Intelligence may amend
a certification submitted in accordance with
subsection (g) or the targeting and
minimization procedures adopted in accordance
with subsections (d) and (e) as necessary at
any time, including if the Court is conducting
or has completed review of such certification
or such procedures, and shall submit the
amended certification or amended procedures to
the Court not later than 7 days after amending
such certification or such procedures. The
Court shall review any amendment under this
subparagraph under the procedures set forth in
this subsection. The Attorney General and the
Director of National Intelligence may authorize
the use of an amended certification or amended
procedures pending the Court's review of such
amended certification or amended procedures.
(2) Review.--The Court shall review the following:
(A) Certification.--A certification
submitted in accordance with subsection (g) to
determine whether the certification contains
all the required elements.
(B) Targeting procedures.--The targeting
procedures adopted in accordance with
subsection (d) to assess whether the procedures
are reasonably designed to--
(i) ensure that an acquisition
authorized under subsection (a) is
limited to targeting persons reasonably
believed to be located outside the
United States; and
(ii) 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.
(C) Minimization procedures.--The
minimization procedures adopted in accordance
with subsection (e) to assess whether such
procedures meet the definition of minimization
procedures under section 101(h) or section
301(4), as appropriate.
(3) Orders.--
(A) Approval.--If the Court finds that a
certification submitted in accordance with
subsection (g) contains all the required
elements and that the targeting and
minimization procedures adopted in accordance
with subsections (d) and (e) are consistent
with the requirements of those subsections and
with the fourth amendment to the Constitution
of the United States, the Court shall enter an
order approving the certification and the use,
or continued use in the case of an acquisition
authorized pursuant to a determination under
subsection (c)(2), of the procedures for the
acquisition.
(B) Correction of deficiencies.--If the
Court finds that a certification submitted in
accordance with subsection (g) does not contain
all the required elements, or that the
procedures adopted in accordance with
subsections (d) and (e) are not consistent with
the requirements of those subsections or the
fourth amendment to the Constitution of the
United States, the Court shall issue an order
directing the Government to, at the
Government's election and to the extent
required by the Court's order--
(i) correct any deficiency
identified by the Court's order not
later than 30 days after the date on
which the Court issues the order; or
(ii) cease, or not begin, the
implementation of the authorization for
which such certification was submitted.
(C) Requirement for written statement.--In
support of an order under this subsection, the
Court shall provide, simultaneously with the
order, for the record a written statement of
the reasons for the order.
(D) Limitation on use of information.--
(i) In general.--Except as provided
in clause (ii), if the Court orders a
correction of a deficiency in a
certification or procedures under
subparagraph (B), no information
obtained or evidence derived pursuant
to the part of the certification or
procedures that has been identified by
the Court as deficient concerning any
United States person shall be received
in evidence or otherwise disclosed in
any trial, hearing, or other proceeding
in or before any court, grand jury,
department, office, agency, regulatory
body, legislative committee, or other
authority of the United States, a
State, or political subdivision
thereof, and no information concerning
any United States person acquired
pursuant to such part of such
certification or procedures shall
subsequently be used or disclosed in
any other manner by Federal officers or
employees without the consent of the
United States person, except with the
approval of the Attorney General if the
information indicates a threat of death
or serious bodily harm to any person.
(ii) Exception.--If the Government
corrects any deficiency identified by
the order of the Court under
subparagraph (B), the Court may permit
the use or disclosure of information
obtained before the date of the
correction under such minimization
procedures as the Court may approve for
purposes of this clause.
(4) Appeal.--
(A) Appeal to the court of review.--The
Government may file a petition with the Foreign
Intelligence Surveillance Court of Review for
review of an order under this subsection. The
Court of Review shall have jurisdiction to
consider such petition. For any decision under
this subparagraph affirming, reversing, or
modifying an order of the Foreign Intelligence
Surveillance Court, the Court of Review shall
provide for the record a written statement of
the reasons for the decision.
(B) Continuation of acquisition pending
rehearing or appeal.--Any acquisition affected
by an order under paragraph (3)(B) may
continue--
(i) during the pendency of any
rehearing of the order by the Court en
banc; and
(ii) if the Government files a
petition for review of an order under
this section, until the Court of Review
enters an order under subparagraph (C).
(C) Implementation pending appeal.--Not
later than 60 days after the filing of a
petition for review of an order under paragraph
(3)(B) directing the correction of a
deficiency, the Court of Review shall
determine, and enter a corresponding order
regarding, whether all or any part of the
correction order, as issued or modified, shall
be implemented during the pendency of the
review.
(D) Certiorari to the supreme court.--The
Government may file a petition for a writ of
certiorari for review of a decision of the
Court of Review issued under subparagraph (A).
The record for such review shall be transmitted
under seal to the Supreme Court of the United
States, which shall have jurisdiction to review
such decision.
(5) Schedule.--
(A) Reauthorization of authorizations in
effect.--If the Attorney General and the
Director of National Intelligence seek to
reauthorize or replace an authorization issued
under subsection (a), the Attorney General and
the Director of National Intelligence shall, to
the extent practicable, submit to the Court the
certification prepared in accordance with
subsection (g) and the procedures adopted in
accordance with subsections (d) and (e) at
least 30 days prior to the expiration of such
authorization.
(B) Reauthorization of orders,
authorizations, and directives.--If the
Attorney General and the Director of National
Intelligence seek to reauthorize or replace an
authorization issued under subsection (a) by
filing a certification pursuant to subparagraph
(A), that authorization, and any directives
issued thereunder and any order related
thereto, shall remain in effect,
notwithstanding the expiration provided for in
subsection (a), until the Court issues an order
with respect to such certification under
paragraph (3) at which time the provisions of
that paragraph and paragraph (4) shall apply
with respect to such certification.
(j) Judicial Proceedings.--
(1) Expedited judicial proceedings.--Judicial
proceedings under this section shall be conducted as
expeditiously as possible.
(2) Time limits.--A time limit for a judicial
decision in this section shall apply unless the Court,
the Court of Review, or any judge of either the Court
or the Court of Review, by order for reasons stated,
extends that time as necessary for good cause in a
manner consistent with national security.
(k) Maintenance and Security of Records and Proceedings.--
(1) Standards.--The Foreign Intelligence
Surveillance Court shall maintain a record of a
proceeding under this section, including petitions,
appeals, orders, and statements of reasons for a
decision, under security measures adopted by the Chief
Justice of the United States, in consultation with the
Attorney General and the Director of National
Intelligence.
(2) Filing and review.--All petitions under this
section shall be filed under seal. In any proceedings
under this section, the Court shall, upon request of
the Government, review ex parte and in camera any
Government submission, or portions of a submission,
which may include classified information.
(3) Retention of records.--The Attorney General and
the Director of National Intelligence shall retain a
directive or an order issued under this section for a
period of not less than 10 years from the date on which
such directive or such order is issued.
(l) Assessments and Reviews.--
(1) Semiannual assessment.--Not less frequently
than once every 6 months, the Attorney General and
Director of National Intelligence shall assess
compliance with the targeting and minimization
procedures adopted in accordance with subsections (d)
and (e) and the guidelines adopted in accordance with
subsection (f) and shall submit each assessment to--
(A) the Foreign Intelligence Surveillance
Court; and
(B) consistent with the Rules of the House
of Representatives, the Standing Rules of the
Senate, and Senate Resolution 400 of the 94th
Congress or any successor Senate resolution--
(i) the congressional intelligence
committees; and
(ii) the Committees on the
Judiciary of the House of
Representatives and the Senate.
(2) Agency assessment.--The Inspector General of
the Department of Justice and the Inspector General of
each element of the intelligence community authorized
to acquire foreign intelligence information under
subsection (a), with respect to the department or
element of such Inspector General--
(A) are authorized to review compliance
with the targeting and minimization procedures
adopted in accordance with subsections (d) and
(e) and the guidelines adopted in accordance
with subsection (f);
(B) with respect to acquisitions authorized
under subsection (a), shall review the number
of disseminated intelligence reports containing
a reference to a United States-person identity
and the number of United States-person
identities subsequently disseminated by the
element concerned in response to requests for
identities that were not referred to by name or
title in the original reporting;
(C) with respect to acquisitions authorized
under subsection (a), shall review the number
of targets that were later determined to be
located in the United States and, to the extent
possible, whether communications of such
targets were reviewed; and
(D) shall provide each such review to--
(i) the Attorney General;
(ii) the Director of National
Intelligence; and
(iii) consistent with the Rules of
the House of Representatives, the
Standing Rules of the Senate, and
Senate Resolution 400 of the 94th
Congress or any successor Senate
resolution--
(I) the congressional
intelligence committees; and
(II) the Committees on the
Judiciary of the House of
Representatives and the Senate.
(3) Annual review.--
(A) Requirement to conduct.--The head of
each element of the intelligence community
conducting an acquisition authorized under
subsection (a) shall conduct an annual review
to determine whether there is reason to believe
that foreign intelligence information has been
or will be obtained from the acquisition. The
annual review shall provide, with respect to
acquisitions authorized under subsection (a)--
(i) an accounting of the number of
disseminated intelligence reports
containing a reference to a United
States-person identity;
(ii) an accounting of the number of
United States-person identities
subsequently disseminated by that
element in response to requests for
identities that were not referred to by
name or title in the original
reporting;
(iii) the number of targets that
were later determined to be located in
the United States and, to the extent
possible, whether communications of
such targets were reviewed; and
(iv) a description of any
procedures developed by the head of
such element of the intelligence
community and approved by the Director
of National Intelligence to assess, in
a manner consistent with national
security, operational requirements and
the privacy interests of United States
persons, the extent to which the
acquisitions authorized under
subsection (a) acquire the
communications of United States
persons, and the results of any such
assessment.
(B) Use of review.--The head of each
element of the intelligence community that
conducts an annual review under subparagraph
(A) shall use each such review to evaluate the
adequacy of the minimization procedures
utilized by such element and, as appropriate,
the application of the minimization procedures
to a particular acquisition authorized under
subsection (a).
(C) Provision of review.--The head of each
element of the intelligence community that
conducts an annual review under subparagraph
(A) shall provide such review to--
(i) the Foreign Intelligence
Surveillance Court;
(ii) the Attorney General;
(iii) the Director of National
Intelligence; and
(iv) consistent with the Rules of
the House of Representatives, the
Standing Rules of the Senate, and
Senate Resolution 400 of the 94th
Congress or any successor Senate
resolution--
(I) the congressional
intelligence committees; and
(II) the Committees on the
Judiciary of the House of
Representatives and the Senate.
* * * * * * *
----------
USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005
* * * * * * *
TITLE I--USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT
* * * * * * *
SEC. 102. USA PATRIOT ACT SUNSET PROVISIONS.
(a) In General.--Section 224 of the USA PATRIOT Act is
repealed.
(b) Sections 206 and 215 Sunset.--
(1) In general.--Effective [June 1, 2015] December
15, 2019, the Foreign Intelligence Surveillance Act of
1978 is amended so that sections 501, 502, and
105(c)(2) read as they read on October 25, 2001.
(2) Exception.--With respect to any particular
foreign intelligence investigation that began before
the date on which the provisions referred to in
paragraph (1) cease to have effect, or with respect to
any particular offense or potential offense that began
or occurred before the date on which such provisions
cease to have effect, such provisions shall continue in
effect.
* * * * * * *
SEC. 106A. AUDIT ON ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN
INTELLIGENCE PURPOSES.
(a) Audit.--The Inspector General of the Department of
Justice shall perform a comprehensive audit of the
effectiveness and use, including any improper or illegal use,
of the investigative authority provided to the Federal Bureau
of Investigation under title V of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861 et seq.).
(b) Requirements.--The audit required under subsection (a)
shall include--
(1) an examination of each instance in which the
Attorney General, any other officer, employee, or agent
of the Department of Justice, the Director of the
Federal Bureau of Investigation, or a designee of the
Director, submitted an application to the Foreign
Intelligence Surveillance Court (as such term is
defined in section 301(3) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1821(3))) for an
order under section 501 of such Act during the calendar
years of 2002 through 2006 and calendar years 2012
through 2014, including--
(A) whether the Federal Bureau of
Investigation requested that the Department of
Justice submit an application and the request
was not submitted to the court (including an
examination of the basis for not submitting the
application);
(B) whether the court granted, modified, or
denied the application (including an
examination of the basis for any modification
or denial);
[(2) the justification for the failure of the
Attorney General to issue implementing procedures
governing requests for the production of tangible
things under such section in a timely fashion,
including whether such delay harmed national security;
[(3) whether bureaucratic or procedural impediments
to the use of such requests for production prevent the
Federal Bureau of Investigation from taking full
advantage of the authorities provided under section 501
of such Act;]
[(4)] (2) any noteworthy facts or circumstances
relating to orders under such section, including any
improper or illegal use of the authority provided under
such section; and
[(5)] (3) an examination of the effectiveness of
such section as an investigative tool, including--
(A) the categories of records obtained and
the importance of the information acquired to
the intelligence activities of the Federal
Bureau of Investigation or any other Department
or agency of the Federal Government;
(B) the manner in which such information is
collected, retained, analyzed, and disseminated
by the Federal Bureau of Investigation,
including any direct access to such information
(such as access to ``raw data'') provided to
any other Department, agency, or
instrumentality of Federal, State, local, or
tribal governments or any private sector
entity;
[(C) with respect to calendar year 2006, an
examination of the minimization procedures
adopted by the Attorney General under section
501(g) of such Act and whether such
minimization procedures protect the
constitutional rights of United States
persons;]
(C) with respect to calendar years 2012
through 2014, an examination of the
minimization procedures used in relation to
orders under section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) and whether the minimization
procedures adequately protect the
constitutional rights of United States persons;
(D) whether, and how often, the Federal
Bureau of Investigation utilized information
acquired pursuant to an order under section 501
of such Act to produce an analytical
intelligence product for distribution within
the Federal Bureau of Investigation, to the
intelligence community [(as such term is
defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4)))], or
to other Federal, State, local, or tribal
government Departments, agencies, or
instrumentalities; and
(E) whether, and how often, the Federal
Bureau of Investigation provided such
information to law enforcement authorities for
use in criminal proceedings.
(c) Submission Dates.--
(1) Prior years.--Not later than one year after the
date of the enactment of this Act, or upon completion
of the audit under this section for calendar years
2002, 2003, and 2004, whichever is earlier, the
Inspector General of the Department of Justice shall
submit to the Committee on the Judiciary and the
Permanent Select Committee on Intelligence of the House
of Representatives and the Committee on the Judiciary
and the Select Committee on Intelligence of the Senate
a report containing the results of the audit conducted
under this section for calendar years 2002, 2003, and
2004.
(2) Calendar years 2005 and 2006.--Not later than
December 31, 2007, or upon completion of the audit
under this section for calendar years 2005 and 2006,
whichever is earlier, the Inspector General of the
Department of Justice shall submit to the Committee on
the Judiciary and the Permanent Select Committee on
Intelligence of the House of Representatives and the
Committee on the Judiciary and the Select Committee on
Intelligence of the Senate a report containing the
results of the audit conducted under this section for
calendar years 2005 and 2006.
(3) Calendar years 2012 through 2014.--Not later
than 1 year after the date of enactment of the USA
FREEDOM Act of 2015, the Inspector General of the
Department of Justice shall submit to the Committee on
the Judiciary and the Select Committee on Intelligence
of the Senate and the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the
House of Representatives a report containing the
results of the audit conducted under subsection (a) for
calendar years 2012 through 2014.
(d) Intelligence Assessment.--
(1) In general.--For the period beginning on
January 1, 2012, and ending on December 31, 2014, the
Inspector General of the Intelligence Community shall
assess--
(A) the importance of the information
acquired under title V of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1861 et seq.) to the activities of the
intelligence community;
(B) the manner in which that information
was collected, retained, analyzed, and
disseminated by the intelligence community;
(C) the minimization procedures used by
elements of the intelligence community under
such title and whether the minimization
procedures adequately protect the
constitutional rights of United States persons;
and
(D) any minimization procedures proposed by
an element of the intelligence community under
such title that were modified or denied by the
court established under section 103(a) of such
Act (50 U.S.C. 1803(a)).
(2) Submission date for assessment.--Not later than
180 days after the date on which the Inspector General
of the Department of Justice submits the report
required under subsection (c)(3), the Inspector General
of the Intelligence Community shall submit to the
Committee on the Judiciary and the Select Committee on
Intelligence of the Senate and the Committee on the
Judiciary and the Permanent Select Committee on
Intelligence of the House of Representatives a report
containing the results of the assessment for calendar
years 2012 through 2014.
[(d)] (e) Prior Notice to Attorney General and Director of
National Intelligence; Comments.--
(1) Notice.--Not less than 30 days before the
submission of [a report under subsection (c)(1) or
(c)(2)] any report under subsection (c) or (d), the
[Inspector General of the Department of Justice]
Inspector General of the Department of Justice, the
Inspector General of the Intelligence Community, and
any Inspector General of an element of the intelligence
community that prepares a report to assist the
Inspector General of the Department of Justice or the
Inspector General of the Intelligence Community in
complying with the requirements of this section shall
provide such report to the Attorney General and the
Director of National Intelligence.
(2) Comments.--The Attorney General or the Director
of National Intelligence may provide comments to be
included in [the reports submitted under subsections
(c)(1) and (c)(2)] any report submitted under
subsection (c) or (d) as the Attorney General or the
Director of National Intelligence may consider
necessary.
[(e)] (f) Unclassified Form.--[The reports submitted under
subsections (c)(1) and (c)(2)] Each report submitted under
subsection (c) and any comments included under [subsection
(d)(2)] subsection (e)(2) shall be in unclassified form, but
may include a classified annex.
(g) Definitions.--In this section:
(1) Intelligence community.--The term
``intelligence community'' has the meaning given that
term in section 3 of the National Security Act of 1947
(50 U.S.C. 3003).
(2) United states person.--The term ``United States
person'' has the meaning given that term in section 101
of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801).
* * * * * * *
SEC. 118. REPORTS ON NATIONAL SECURITY LETTERS.
(a) Existing Reports.--Any report made to a committee of
Congress regarding national security letters under section
2709(c)(1) of title 18, United States Code, section 626(d) or
627(c) of the Fair Credit Reporting Act (15 U.S.C. 1681u(d) or
1681v(c)), section 1114(a)(3) or 1114(a)(5)(D) of the Right to
Financial Privacy Act (12 U.S.C. 3414(a)(3) or 3414(a)(5)(D)),
or section 802(b) of the National Security Act of 1947 (50
U.S.C. 436(b)) shall also be made to the Committees on the
Judiciary of the House of Representatives and the Senate.
(b) Enhanced Oversight of Fair Credit Reporting Act
Counterterrorism National Security Letter.--Section 627 of the
Fair Credit Reporting Act (15 U.S.C. 1681(v)) is amended by
inserting at the end the following new subsection:
``(f) Reports to Congress.--(1) On a semi-annual basis, the
Attorney General shall fully inform the Committee on the
Judiciary, the Committee on Financial Services, and the
Permanent Select Committee on Intelligence of the House of
Representatives and the Committee on the Judiciary, the
Committee on Banking, Housing, and Urban Affairs, and the
Select Committee on Intelligence of the Senate concerning all
requests made pursuant to subsection (a).
``(2) In the case of the semiannual reports
required to be submitted under paragraph (1) to the
Permanent Select Committee on Intelligence of the House
of Representatives and the Select Committee on
Intelligence of the Senate, the submittal dates for
such reports shall be as provided in section 507 of the
National Security Act of 1947 (50 U.S.C. 415b).''.
(c) Report on Requests for National Security Letters.--
(1) In general.--In April of each year, the
Attorney General shall submit to Congress an aggregate
report setting forth with respect to the preceding year
the total number of requests made by the Department of
Justice for information concerning different [United
States] persons under--
(A) section 2709 of title 18, United States
Code (to access certain communication service
provider records)[, excluding the number of
requests for subscriber information];
(B) section 1114 of the Right to Financial
Privacy Act (12 U.S.C. 3414) (to obtain
financial institution customer records);
(C) section 802 of the National Security
Act of 1947 (50 U.S.C. 436) (to obtain
financial information, records, and consumer
reports);
(D) section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u) (to obtain
certain financial information and consumer
reports); and
(E) section 627 of the Fair Credit
Reporting Act (15 U.S.C. 1681v) (to obtain
credit agency consumer records for
counterterrorism investigations).
(2) Content.--
(A) In general.--Except as provided in
subparagraph (B), each report required under
this subsection shall include a good faith
estimate of the total number of requests
described in paragraph (1) requiring disclosure
of information concerning--
(i) United States persons; and
(ii) persons who are not United
States persons.
(B) Exception.--With respect to the number
of requests for subscriber information under
section 2709 of title 18, United States Code, a
report required under this subsection need not
separate the number of requests into each of
the categories described in subparagraph (A).
[(2)] (3) Unclassified form.--The report under this
section shall be submitted in unclassified form.
(d) National Security Letter Defined.--In this section, the
term ``national security letter'' means a request for
information under one of the following provisions of law:
(1) Section 2709(a) of title 18, United States Code
(to access certain communication service provider
records).
(2) Section 1114(a)(5)(A) of the Right to Financial
Privacy Act (12 U.S.C. 3414(a)(5)(A)) (to obtain
financial institution customer records).
(3) Section 802 of the National Security Act of
1947 (50 U.S.C. 436) (to obtain financial information,
records, and consumer reports).
(4) Section 626 of the Fair Credit Reporting Act
(15 U.S.C. 1681u) (to obtain certain financial
information and consumer reports).
(5) Section 627 of the Fair Credit Reporting Act
(15 U.S.C. 1681v) (to obtain credit agency consumer
records for counterterrorism investigations).
* * * * * * *
----------
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 39--EXPLOSIVES AND OTHER DANGEROUS ARTICLES
Sec. 831. Prohibited transactions involving nuclear materials
(a) Whoever, if one of the circumstances described in
subsection (c) of this section occurs--
(1) without lawful authority, intentionally
receives, possesses, uses, transfers, alters, disposes
of, or disperses any nuclear material or nuclear
byproduct material and--
(A) thereby knowingly causes the death of
or serious bodily injury to any person or
substantial damage to property or to the
environment; or
(B) circumstances exist, or have been
represented to the defendant to exist, that are
likely to cause the death or serious bodily
injury to any person, or substantial damage to
property or to the environment;
(2) with intent to deprive another of nuclear
material or nuclear byproduct material, knowingly--
(A) takes and carries away nuclear material
or nuclear byproduct material of another
without authority;
(B) makes an unauthorized use, disposition,
or transfer, of nuclear material or nuclear
byproduct material belonging to another; or
(C) uses fraud and thereby obtains nuclear
material or nuclear byproduct material
belonging to another;
(3) without lawful authority, intentionally
carries, sends or moves nuclear material into or out of
a country;
[(3)] (4) knowingly--
(A) uses force; or
(B) threatens or places another in fear
that any person other than the actor will
imminently be subject to bodily injury;
and thereby takes nuclear material or nuclear byproduct
material belonging to another from the person or
presence of any other;
[(4)] (5) intentionally intimidates any person and
thereby obtains nuclear material or nuclear byproduct
material belonging to another;
[(5)] (6) with intent to compel any person,
international organization, or governmental entity to
do or refrain from doing any act, knowingly threatens
to engage in conduct described in paragraph (2)(A) or
(3) of this subsection;
[(6)] (7) knowingly threatens to use nuclear
material or nuclear byproduct material to cause death
or serious bodily injury to any person or substantial
damage to property or to the environment under
circumstances in which the threat may reasonably be
understood as an expression of serious purposes;
[(7)] (8) attempts to commit [an offense under
paragraph (1), (2), (3), or (4)] any act prohibited
under paragraphs (1) through (5) of this subsection; or
[(8)] (9) is a party to a conspiracy of two or more
persons to commit [an offense under paragraph (1), (2),
(3), or (4)] any act prohibited under paragraphs (1)
through (7) of this subsection, if any of the parties
intentionally engages in any conduct in furtherance of
such offense;
shall be punished as provided in subsection (b) of this
section.
(b) The punishment for an offense under--
(1) paragraphs (1) through [(7)] (8) of subsection
(a) of this section is--
(A) a fine under this title; and
(B) imprisonment--
(i) for any term of years or for
life (I) if, while committing the
offense, the offender knowingly causes
the death of any person; or (II) if,
while committing an offense under
paragraph (1) or (3) of subsection (a)
of this section, the offender, under
circumstances manifesting extreme
indifference to the life of an
individual, knowingly engages in any
conduct and thereby recklessly causes
the death of or serious bodily injury
to any person; and
(ii) for not more than 20 years in
any other case; and
(2) paragraph [(8)] (9) of subsection (a) of this
section is--
(A) a fine under this title; and
(B) imprisonment--
(i) for not more than 20 years if
the offense which is the object of the
conspiracy is punishable under
paragraph (1)(B)(i); and
(ii) for not more than 10 years in
any other case.
(c) The circumstances referred to in subsection (a) of this
section are that--
(1) the offense is committed in the United States
or the special maritime and territorial jurisdiction of
the United States, or the special aircraft jurisdiction
of the United States (as defined in section 46501 of
title 49);
(2) an offender or a victim is--
(A) a national of the United States or a
stateless person whose habitual residence is in
the United States; or
(B) a United States corporation or other
legal entity;
(3) after the conduct required for the offense
occurs the defendant is found in the United States,
even if the conduct required for the offense occurs
outside the United States;
(4) the conduct required for the offense occurs
with respect to the carriage of a consignment of
nuclear material or nuclear byproduct material for
peaceful purposes by any means of transportation
intended to go beyond the territory of the state where
the shipment originates beginning with the departure
from a facility of the shipper in that state and ending
with the arrival at a facility of the receiver within
the state of ultimate destination and either of such
states is the United States; [or]
[(5) either--
[(A) the governmental entity under
subsection (a)(5) is the United States; or
[(B) the threat under subsection (a)(6) is
directed at the United States.]
(5) the offense is committed on board a vessel of
the United States or a vessel subject to the
jurisdiction of the United States (as defined in
section 70502 of title 46) or on board an aircraft that
is registered under United States law, at the time the
offense is committed;
(6) the offense is committed outside the United
States and against any state or government facility of
the United States; or
(7) the offense is committed in an attempt to
compel the United States to do or abstain from doing
any act, or constitutes a threat directed at the United
States.
(d) Nonapplicability.--This section does not apply to--
(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law
of war, which are governed by that law; or
(2) activities undertaken by military forces of a
state in the exercise of their official duties.
[(d)] (e) The Attorney General may request assistance from
the Secretary of Defense under chapter 18 of title 10 in the
enforcement of this section and the Secretary of Defense may
provide such assistance in accordance with chapter 18 of title
10, except that the Secretary of Defense may provide such
assistance through any Department of Defense personnel.
[(e)] (f)(1) The Attorney General may also request
assistance from the Secretary of Defense under this subsection
in the enforcement of this section. Notwithstanding section
1385 of this title, the Secretary of Defense may, in accordance
with other applicable law, provide such assistance to the
Attorney General if--
(A) an emergency situation exists (as jointly
determined by the Attorney General and the Secretary of
Defense in their discretion); and
(B) the provision of such assistance will not
adversely affect the military preparedness of the
United States (as determined by the Secretary of
Defense in such Secretary's discretion).
(2) As used in this subsection, the term ``emergency
situation'' means a circumstance--
(A) that poses a serious threat to the interests of
the United States; and
(B) in which--
(i) enforcement of the law would be
seriously impaired if the assistance were not
provided; and
(ii) civilian law enforcement personnel are
not capable of enforcing the law.
(3) Assistance under this section may include--
(A) use of personnel of the Department of Defense
to arrest persons and conduct searches and seizures
with respect to violations of this section; and
(B) such other activity as is incidental to the
enforcement of this section, or to the protection of
persons or property from conduct that violates this
section.
(4) The Secretary of Defense may require reimbursement as a
condition of assistance under this section.
(5) The Attorney General may delegate the Attorney
General's function under this subsection only to a Deputy,
Associate, or Assistant Attorney General.
[(f)] (g) As used in this section--
(1) the term ``nuclear material'' means material
containing any--
(A) plutonium;
(B) uranium not in the form of ore or ore
residue that contains the mixture of isotopes
as occurring in nature;
(C) enriched uranium, defined as uranium
that contains the isotope 233 or 235 or both in
such amount that the abundance ratio of the sum
of those isotopes to the isotope 238 is greater
than the ratio of the isotope 235 to the
isotope 238 occurring in nature; or
(D) uranium 233;
(2) the term ``nuclear byproduct material'' means
any material containing any radioactive isotope created
through an irradiation process in the operation of a
nuclear reactor or accelerator;
(3) the term ``international organization'' means a
public international organization designated as such
pursuant to section 1 of the International
Organizations Immunities Act (22 U.S.C. 288) or a
public organization created pursuant to treaty or other
agreement under international law as an instrument
through or by which two or more foreign governments
engage in some aspect of their conduct of international
affairs;
(4) the term ``serious bodily injury'' means bodily
injury which involves--
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement;
or
(D) protracted loss or impairment of the
function of a bodily member, organ, or mental
faculty;
(5) the term ``bodily injury'' means--
(A) a cut, abrasion, bruise, burn, or
disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of a function of a bodily
member, organ, or mental faculty; or
(E) any other injury to the body, no matter
how temporary;
(6) the term ``national of the United States'' has
the same meaning as in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22));
[and]
(7) the term ``United States corporation or other
legal entity'' means any corporation or other entity
organized under the laws of the United States or any
State, Commonwealth, territory, possession, or district
of the United States[.];
(8) the term ``armed conflict'' has the meaning
given that term in section 2332f(e)(11) of this title;
(9) the term ``military forces of a state'' means
the armed forces of a country that are organized,
trained and equipped under its internal law for the
primary purpose of national defense or security and
persons acting in support of those armed forces who are
under their formal command, control and responsibility;
(10) the term ``state'' has the same meaning as
that term has under international law, and includes all
political subdivisions thereof;
(11) the term ``state or government facility'' has
the meaning given that term in section 2332f(e)(3) of
this title; and
(12) the term ``vessel of the United States'' has
the meaning given that term in section 70502 of title
46.
* * * * * * *
CHAPTER 111--SHIPPING
Sec.
2271. Conspiracy to destroy vessels.
* * * * * * *
2280a. Violence against maritime navigation and maritime transport
involving weapons of mass destruction.
* * * * * * *
2281a. Additional offenses against maritime fixed platforms.
* * * * * * *
Sec. 2280. Violence against maritime navigation
(a) Offenses.--
(1) In general.--A person who unlawfully and
intentionally--
(A) seizes or exercises control over a ship
by force or threat thereof or any other form of
intimidation;
(B) performs an act of violence against a
person on board a ship if that act is likely to
endanger the safe navigation of that ship;
(C) destroys a ship or causes damage to a
ship or to its cargo which is likely to
endanger the safe navigation of that ship;
(D) places or causes to be placed on a
ship, by any means whatsoever, a device or
substance which is likely to destroy that ship,
or cause damage to that ship or its cargo which
endangers or is likely to endanger the safe
navigation of that ship;
(E) destroys or seriously damages maritime
navigational facilities or seriously interferes
with their operation, if such act is likely to
endanger the safe navigation of a ship;
(F) communicates information, knowing the
information to be false and under circumstances
in which such information may reasonably be
believed, thereby endangering the safe
navigation of a ship;
(G) injures or kills any person in
connection with the commission or the attempted
commission of any of the offenses set forth in
subparagraphs (A) through (F); or
(H) attempts or conspires to do any act
prohibited under subparagraphs (A) through (G),
shall be fined under this title, imprisoned not more
than 20 years, or both; and if the death of any person
results from conduct prohibited by this paragraph,
shall be punished by death or imprisoned for any term
of years or for life.
(2) Threat to navigation.--A person who threatens
to do any act prohibited under paragraph (1)(B), (C) or
(E), with apparent determination and will to carry the
threat into execution, if the threatened act is likely
to endanger the safe navigation of the ship in
question, shall be fined under this title, imprisoned
not more than 5 years, or both.
(b) Jurisdiction.--There is jurisdiction over the activity
prohibited in subsection (a)--
(1) in the case of a covered ship, if--
(A) such activity is committed--
(i) against or on board [a ship
flying the flag of the United States] a
vessel of the United States or a vessel
subject to the jurisdiction of the
United States (as defined in section
70502 of title 46) at the time the
prohibited activity is committed;
(ii) in the United States,
including the territorial seas; or
(iii) by a national of the United
States, by a United States corporation
or legal entity, or by a stateless
person whose habitual residence is in
the United States;
(B) during the commission of such activity,
a national of the United States is seized,
threatened, injured or killed; or
(C) the offender is later found in the
United States after such activity is committed;
(2) in the case of a ship navigating or scheduled
to navigate solely within the territorial sea or
internal waters of a country other than the United
States, if the offender is later found in the United
States after such activity is committed; and
(3) in the case of any vessel, if such activity is
committed in an attempt to compel the United States to
do or abstain from doing any act.
(c) Bar To Prosecution.--It is a bar to Federal prosecution
under subsection (a) for conduct that occurred within the
United States that the conduct involved was during or in
relation to a labor dispute, and such conduct is prohibited as
a felony under the law of the State in which it was committed.
For purposes of this section, the term ``labor dispute'' has
the meaning set forth in [section 2(c)] section 13(c) of the
Norris-LaGuardia Act, as amended (29 U.S.C. 113(c)).
[(d) Delivery of Suspected Offender.--The master of a
covered ship flying the flag of the United States who has
reasonable grounds to believe that there is on board that ship
any person who has committed an offense under Article 3 of the
Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation may deliver such person to the
authorities of a State Party to that Convention. Before
delivering such person to the authorities of another country,
the master shall notify in an appropriate manner the Attorney
General of the United States of the alleged offense and await
instructions from the Attorney General as to what action to
take. When delivering the person to a country which is a State
Party to the Convention, the master shall, whenever
practicable, and if possible before entering the territorial
sea of such country, notify the authorities of such country of
the master's intention to deliver such person and the reasons
therefor. If the master delivers such person, the master shall
furnish to the authorities of such country the evidence in the
master's possession that pertains to the alleged offense.
[(e) Definitions.--In this section--
[``covered ship'' means a ship that is navigating
or is scheduled to navigate into, through or from
waters beyond the outer limit of the territorial sea of
a single country or a lateral limit of that country's
territorial sea with an adjacent country.]
[``national of the United States'' has the meaning
stated in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)). ]
[``territorial sea of the United States'' means all
waters extending seaward to 12 nautical miles from the
baselines of the United States determined in accordance
with international law.]
[``ship'' means a vessel of any type whatsoever not
permanently attached to the sea-bed, including
dynamically supported craft, submersibles or any other
floating craft, but does not include a warship, a ship
owned or operated by a government when being used as a
naval auxiliary or for customs or police purposes, or a
ship which has been withdrawn from navigation or laid
up.]
[``United States'', when used in a geographical
sense, includes the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands and all
territories and possessions of the United States.]
(d) Definitions.--As used in this section, section 2280a,
section 2281, and section 2281a, the term--
(1) ``applicable treaty'' means--
(A) the Convention for the Suppression of
Unlawful Seizure of Aircraft, done at The Hague
on 16 December 1970;
(B) the Convention for the Suppression of
Unlawful Acts against the Safety of Civil
Aviation, done at Montreal on 23 September
1971;
(C) the Convention on the Prevention and
Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents,
adopted by the General Assembly of the United
Nations on 14 December 1973;
(D) International Convention against the
Taking of Hostages, adopted by the General
Assembly of the United Nations on 17 December
1979;
(E) the Convention on the Physical
Protection of Nuclear Material, done at Vienna
on 26 October 1979;
(F) the Protocol for the Suppression of
Unlawful Acts of Violence at Airports Serving
International Civil Aviation, supplementary to
the Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, done
at Montreal on 24 February 1988;
(G) the Protocol for the Suppression of
Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf,
done at Rome on 10 March 1988;
(H) International Convention for the
Suppression of Terrorist Bombings, adopted by
the General Assembly of the United Nations on
15 December 1997; and
(I) International Convention for the
Suppression of the Financing of Terrorism,
adopted by the General Assembly of the United
Nations on 9 December 1999;
(2) ``armed conflict'' does not include internal
disturbances and tensions, such as riots, isolated and
sporadic acts of violence, and other acts of a similar
nature;
(3) ``biological weapon'' means--
(A) microbial or other biological agents,
or toxins whatever their origin or method of
production, of types and in quantities that
have no justification for prophylactic,
protective, or other peaceful purposes; or
(B) weapons, equipment, or means of
delivery designed to use such agents or toxins
for hostile purposes or in armed conflict;
(4) ``chemical weapon'' means, together or
separately--
(A) toxic chemicals and their precursors,
except where intended for--
(i) industrial, agricultural,
research, medical, pharmaceutical, or
other peaceful purposes;
(ii) protective purposes, namely
those purposes directly related to
protection against toxic chemicals and
to protection against chemical weapons;
(iii) military purposes not
connected with the use of chemical
weapons and not dependent on the use of
the toxic properties of chemicals as a
method of warfare; or
(iv) law enforcement including
domestic riot control purposes,
as long as the types and quantities are
consistent with such purposes;
(B) munitions and devices, specifically
designed to cause death or other harm through
the toxic properties of those toxic chemicals
specified in subparagraph (A), which would be
released as a result of the employment of such
munitions and devices; and
(C) any equipment specifically designed for
use directly in connection with the employment
of munitions and devices specified in
subparagraph (B);
(5) ``covered ship'' means a ship that is
navigating or is scheduled to navigate into, through or
from waters beyond the outer limit of the territorial
sea of a single country or a lateral limit of that
country's territorial sea with an adjacent country;
(6) ``explosive material'' has the meaning given
the term in section 841(c) and includes explosive as
defined in section 844(j) of this title;
(7) ``infrastructure facility'' has the meaning
given the term in section 2332f(e)(5) of this title;
(8) ``international organization'' has the meaning
given the term in section 831(f)(3) of this title;
(9) ``military forces of a state'' means the armed
forces of a state which are organized, trained, and
equipped under its internal law for the primary purpose
of national defense or security, and persons acting in
support of those armed forces who are under their
formal command, control, and responsibility;
(10) ``national of the United States'' has the
meaning stated in section 101(a)(22) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(22));
(11) ``Non-Proliferation Treaty'' means the Treaty
on the Non-Proliferation of Nuclear Weapons, done at
Washington, London, and Moscow on 1 July 1968;
(12) ``Non-Proliferation Treaty State Party'' means
any State Party to the Non-Proliferation Treaty, to
include Taiwan, which shall be considered to have the
obligations under the Non-Proliferation Treaty of a
party to that treaty other than a Nuclear Weapon State
Party to the Non-Proliferation Treaty;
(13) ``Nuclear Weapon State Party to the Non-
Proliferation Treaty'' means a State Party to the Non-
Proliferation Treaty that is a nuclear-weapon State, as
that term is defined in Article IX(3) of the Non-
Proliferation Treaty;
(14) ``place of public use'' has the meaning given
the term in section 2332f(e)(6) of this title;
(15) ``precursor'' has the meaning given the term
in section 229F(6)(A) of this title;
(16) ``public transport system'' has the meaning
given the term in section 2332f(e)(7) of this title;
(17) ``serious injury or damage'' means--
(A) serious bodily injury,
(B) extensive destruction of a place of
public use, State or government facility,
infrastructure facility, or public
transportation system, resulting in major
economic loss, or
(C) substantial damage to the environment,
including air, soil, water, fauna, or flora;
(18) ``ship'' means a vessel of any type whatsoever
not permanently attached to the sea-bed, including
dynamically supported craft, submersibles, or any other
floating craft, but does not include a warship, a ship
owned or operated by a government when being used as a
naval auxiliary or for customs or police purposes, or a
ship which has been withdrawn from navigation or laid
up;
(19) ``source material'' has the meaning given that
term in the International Atomic Energy Agency Statute,
done at New York on 26 October 1956;
(20) ``special fissionable material'' has the
meaning given that term in the International Atomic
Energy Agency Statute, done at New York on 26 October
1956;
(21) ``territorial sea of the United States'' means
all waters extending seaward to 12 nautical miles from
the baselines of the United States determined in
accordance with international law;
(22) ``toxic chemical'' has the meaning given the
term in section 229F(8)(A) of this title;
(23) ``transport'' means to initiate, arrange or
exercise effective control, including decisionmaking
authority, over the movement of a person or item; and
(24) ``United States'', when used in a geographical
sense, includes the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, and all
territories and possessions of the United States.
(e) Exceptions.--This section shall not apply to--
(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law
of war, which are governed by that law; or
(2) activities undertaken by military forces of a
state in the exercise of their official duties.
(f) Delivery of suspected offender.--The master of a
covered ship flying the flag of the United States who has
reasonable grounds to believe that there is on board that ship
any person who has committed an offense under section 2280 or
section 2280a may deliver such person to the authorities of a
country that is a party to the Convention for the Suppression
of Unlawful Acts against the Safety of Maritime Navigation.
Before delivering such person to the authorities of another
country, the master shall notify in an appropriate manner the
Attorney General of the United States of the alleged offense
and await instructions from the Attorney General as to what
action to take. When delivering the person to a country which
is a state party to the Convention, the master shall, whenever
practicable, and if possible before entering the territorial
sea of such country, notify the authorities of such country of
the master's intention to deliver such person and the reasons
therefor. If the master delivers such person, the master shall
furnish to the authorities of such country the evidence in the
master's possession that pertains to the alleged offense.
(g)(1) Civil forfeiture.--Any real or personal property
used or intended to be used to commit or to facilitate the
commission of a violation of this section, the gross proceeds
of such violation, and any real or personal property traceable
to such property or proceeds, shall be subject to forfeiture.
(2) Applicable procedures.--Seizures and forfeitures under
this section shall be governed by the provisions of chapter 46
of title 18, United States Code, relating to civil forfeitures,
except that such duties as are imposed upon the Secretary of
the Treasury under the customs laws described in section 981(d)
shall be performed by such officers, agents, and other persons
as may be designated for that purpose by the Secretary of
Homeland Security, the Attorney General, or the Secretary of
Defense.
Sec. 2280a. Violence against maritime navigation and maritime transport
involving weapons of mass destruction
(a) Offenses.--
(1) In general.--Subject to the exceptions in
subsection (c), a person who unlawfully and
intentionally--
(A) when the purpose of the act, by its
nature or context, is to intimidate a
population, or to compel a government or an
international organization to do or to abstain
from doing any act--
(i) uses against or on a ship or
discharges from a ship any explosive or
radioactive material, biological,
chemical, or nuclear weapon or other
nuclear explosive device in a manner
that causes or is likely to cause death
to any person or serious injury or
damage;
(ii) discharges from a ship oil,
liquefied natural gas, or another
hazardous or noxious substance that is
not covered by clause (i), in such
quantity or concentration that causes
or is likely to cause death to any
person or serious injury or damage; or
(iii) uses a ship in a manner that
causes death to any person or serious
injury or damage;
(B) transports on board a ship--
(i) any explosive or radioactive
material, knowing that it is intended
to be used to cause, or in a threat to
cause, death to any person or serious
injury or damage for the purpose of
intimidating a population, or
compelling a government or an
international organization to do or to
abstain from doing any act;
(ii) any biological, chemical, or
nuclear weapon or other nuclear
explosive device, knowing it to be a
biological, chemical, or nuclear weapon
or other nuclear explosive device;
(iii) any source material, special
fissionable material, or equipment or
material especially designed or
prepared for the processing, use, or
production of special fissionable
material, knowing that it is intended
to be used in a nuclear explosive
activity or in any other nuclear
activity not under safeguards pursuant
to an International Atomic Energy
Agency comprehensive safeguards
agreement, except where--
(I) such item is
transported to or from the
territory of, or otherwise
under the control of, a Non-
Proliferation Treaty State
Party; and
(II) the resulting transfer
or receipt (including internal
to a country) is not contrary
to the obligations under the
Non-Proliferation Treaty of the
Non-Proliferation Treaty State
Party from which, to the
territory of which, or
otherwise under the control of
which such item is transferred;
(iv) any equipment, materials, or
software or related technology that
significantly contributes to the design
or manufacture of a nuclear weapon or
other nuclear explosive device, with
the intention that it will be used for
such purpose, except where--
(I) the country to the
territory of which or under the
control of which such item is
transferred is a Nuclear Weapon
State Party to the Non-
Proliferation Treaty; and
(II) the resulting transfer
or receipt (including internal
to a country) is not contrary
to the obligations under the
Non-Proliferation Treaty of a
Non-Proliferation Treaty State
Party from which, to the
territory of which, or
otherwise under the control of
which such item is transferred;
(v) any equipment, materials, or
software or related technology that
significantly contributes to the
delivery of a nuclear weapon or other
nuclear explosive device, with the
intention that it will be used for such
purpose, except where--
(I) such item is
transported to or from the
territory of, or otherwise
under the control of, a Non-
Proliferation Treaty State
Party; and
(II) such item is intended
for the delivery system of a
nuclear weapon or other nuclear
explosive device of a Nuclear
Weapon State Party to the Non-
Proliferation Treaty; or
(vi) any equipment, materials, or
software or related technology that
significantly contributes to the
design, manufacture, or delivery of a
biological or chemical weapon, with the
intention that it will be used for such
purpose;
(C) transports another person on board a
ship knowing that the person has committed an
act that constitutes an offense under section
2280 or subparagraph (A), (B), (D), or (E) of
this section or an offense set forth in an
applicable treaty, as specified in section
2280(d)(1), and intending to assist that person
to evade criminal prosecution;
(D) injures or kills any person in
connection with the commission or the attempted
commission of any of the offenses set forth in
subparagraphs (A) through (C), or subsection
(a)(2), to the extent that the subsection
(a)(2) offense pertains to subparagraph (A); or
(E) attempts to do any act prohibited under
subparagraph (A), (B) or (D), or conspires to
do any act prohibited by subparagraphs (A)
through (E) or subsection (a)(2),
shall be fined under this title, imprisoned not more
than 20 years, or both; and if the death of any person
results from conduct prohibited by this paragraph,
shall be imprisoned for any term of years or for life.
(2) Threats.--A person who threatens, with apparent
determination and will to carry the threat into
execution, to do any act prohibited under paragraph
(1)(A) shall be fined under this title, imprisoned not
more than 5 years, or both.
(b) Jurisdiction.--There is jurisdiction over the activity
prohibited in subsection (a)--
(1) in the case of a covered ship, if--
(A) such activity is committed--
(i) against or on board a vessel of
the United States or a vessel subject
to the jurisdiction of the United
States (as defined in section 70502 of
title 46) at the time the prohibited
activity is committed;
(ii) in the United States,
including the territorial seas; or
(iii) by a national of the United
States, by a United States corporation
or legal entity, or by a stateless
person whose habitual residence is in
the United States;
(B) during the commission of such activity,
a national of the United States is seized,
threatened, injured, or killed; or
(C) the offender is later found in the
United States after such activity is committed;
(2) in the case of a ship navigating or scheduled
to navigate solely within the territorial sea or
internal waters of a country other than the United
States, if the offender is later found in the United
States after such activity is committed; or
(3) in the case of any vessel, if such activity is
committed in an attempt to compel the United States to
do or abstain from doing any act.
(c) Exceptions.--This section shall not apply to--
(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law
of war, which are governed by that law; or
(2) activities undertaken by military forces of a
state in the exercise of their official duties.
(d)(1) Civil forfeiture.--Any real or personal property
used or intended to be used to commit or to facilitate the
commission of a violation of this section, the gross proceeds
of such violation, and any real or personal property traceable
to such property or proceeds, shall be subject to forfeiture.
(2) Applicable procedures.--Seizures and forfeitures under
this section shall be governed by the provisions of chapter 46
of title 18, United States Code, relating to civil forfeitures,
except that such duties as are imposed upon the Secretary of
the Treasury under the customs laws described in section 981(d)
shall be performed by such officers, agents, and other persons
as may be designated for that purpose by the Secretary of
Homeland Security, the Attorney General, or the Secretary of
Defense.
Sec. 2281. Violence against maritime fixed platforms
(a) Offenses.--
(1) In general.--A person who unlawfully and
intentionally--
(A) seizes or exercises control over a
fixed platform by force or threat thereof or
any other form of intimidation;
(B) performs an act of violence against a
person on board a fixed platform if that act is
likely to endanger its safety;
(C) destroys a fixed platform or causes
damage to it which is likely to endanger its
safety;
(D) places or causes to be placed on a
fixed platform, by any means whatsoever, a
device or substance which is likely to destroy
that fixed platform or likely to endanger its
safety;
(E) injures or kills any person in
connection with the commission or the attempted
commission of any of the offenses set forth in
subparagraphs (A) through (D); or
(F) attempts or conspires to do anything
prohibited under subparagraphs (A) through (E),
shall be fined under this title, imprisoned not more
than 20 years, or both; and if death results to any
person from conduct prohibited by this paragraph, shall
be punished by death or imprisoned for any term of
years or for life.
(2) Threat to safety.--A person who threatens to do
anything prohibited under paragraph (1)(B) or (C), with
apparent determination and will to carry the threat
into execution, if the threatened act is likely to
endanger the safety of the fixed platform, shall be
fined under this title, imprisoned not more than 5
years, or both.
(b) Jurisdiction.--There is jurisdiction over the activity
prohibited in subsection (a) if--
(1) such activity is committed against or on board
a fixed platform--
(A) that is located on the continental
shelf of the United States;
(B) that is located on the continental
shelf of another country, by a national of the
United States or by a stateless person whose
habitual residence is in the United States; or
(C) in an attempt to compel the United
States to do or abstain from doing any act;
(2) during the commission of such activity against
or on board a fixed platform located on a continental
shelf, a national of the United States is seized,
threatened, injured or killed; or
(3) such activity is committed against or on board
a fixed platform located outside the United States and
beyond the continental shelf of the United States and
the offender is later found in the United States.
(c) Bar To Prosecution.--It is a bar to Federal prosecution
under subsection (a) for conduct that occurred within the
United States that the conduct involved was during or in
relation to a labor dispute, and such conduct is prohibited as
a felony under the law of the State in which it was committed.
For purposes of this section, the term ``labor dispute'' has
the meaning set forth in [section 2(c)] section 13(c) of the
Norris-LaGuardia Act, as amended (29 U.S.C. 113(c)), and the
term ``State'' means a State of the United States, the District
of Columbia, and any commonwealth, territory, or possession of
the United States.
(d) Definitions.--In this section--
``continental shelf'' means the sea-bed and subsoil
of the submarine areas that extend beyond a country's
territorial sea to the limits provided by customary
international law as reflected in Article 76 of the
1982 Convention on the Law of the Sea.
``fixed platform'' means an artificial island,
installation or structure permanently attached to the
sea-bed for the purpose of exploration or exploitation
of resources or for other economic purposes.
[``national of the United States'' has the meaning
stated in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)).
[``territorial sea of the United States'' means all
waters extending seaward to 12 nautical miles from the
baselines of the United States determined in accordance
with international law.
[``United States'', when used in a geographical
sense, includes the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands and all
territories and possessions of the United States.]
(e) Exceptions.--This section does not apply to--
(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law
of war, which are governed by that law; or
(2) activities undertaken by military forces of a
state in the exercise of their official duties.
Sec. 2281a. Additional offenses against maritime fixed platforms
(a) Offenses.--
(1) In general.--A person who unlawfully and
intentionally--
(A) when the purpose of the act, by its
nature or context, is to intimidate a
population, or to compel a government or an
international organization to do or to abstain
from doing any act--
(i) uses against or on a fixed
platform or discharges from a fixed
platform any explosive or radioactive
material, biological, chemical, or
nuclear weapon in a manner that causes
or is likely to cause death or serious
injury or damage; or
(ii) discharges from a fixed
platform oil, liquefied natural gas, or
another hazardous or noxious substance
that is not covered by clause (i), in
such quantity or concentration that
causes or is likely to cause death or
serious injury or damage;
(B) injures or kills any person in
connection with the commission or the attempted
commission of any of the offenses set forth in
subparagraph (A); or
(C) attempts or conspires to do anything
prohibited under subparagraph (A) or (B),
shall be fined under this title, imprisoned not more
than 20 years, or both; and if death results to any
person from conduct prohibited by this paragraph, shall
be imprisoned for any term of years or for life.
(2) Threat to safety.--A person who threatens, with
apparent determination and will to carry the threat
into execution, to do any act prohibited under
paragraph (1)(A), shall be fined under this title,
imprisoned not more than 5 years, or both.
(b) Jurisdiction.--There is jurisdiction over the activity
prohibited in subsection (a) if--
(1) such activity is committed against or on board
a fixed platform--
(A) that is located on the continental
shelf of the United States;
(B) that is located on the continental
shelf of another country, by a national of the
United States or by a stateless person whose
habitual residence is in the United States; or
(C) in an attempt to compel the United
States to do or abstain from doing any act;
(2) during the commission of such activity against
or on board a fixed platform located on a continental
shelf, a national of the United States is seized,
threatened, injured, or killed; or
(3) such activity is committed against or on board
a fixed platform located outside the United States and
beyond the continental shelf of the United States and
the offender is later found in the United States.
(c) Exceptions.--This section does not apply to--
(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law
of war, which are governed by that law; or
(2) activities undertaken by military forces of a
state in the exercise of their official duties.
(d) Definitions.--In this section--
(1) ``continental shelf'' means the sea-bed and
subsoil of the submarine areas that extend beyond a
country's territorial sea to the limits provided by
customary international law as reflected in Article 76
of the 1982 Convention on the Law of the Sea; and
(2) ``fixed platform'' means an artificial island,
installation, or structure permanently attached to the
sea-bed for the purpose of exploration or exploitation
of resources or for other economic purposes.
* * * * * * *
CHAPTER 113B--TERRORISM
Sec.
2331. Definitions.
* * * * * * *
2332i. Acts of nuclear terrorism.
* * * * * * *
Sec. 2332b. Acts of terrorism transcending national boundaries
(a) Prohibited Acts.--
(1) Offenses.--Whoever, involving conduct
transcending national boundaries and in a circumstance
described in subsection (b)--
(A) kills, kidnaps, maims, commits an
assault resulting in serious bodily injury, or
assaults with a dangerous weapon any person
within the United States; or
(B) creates a substantial risk of serious
bodily injury to any other person by destroying
or damaging any structure, conveyance, or other
real or personal property within the United
States or by attempting or conspiring to
destroy or damage any structure, conveyance, or
other real or personal property within the
United States;
in violation of the laws of any State, or the United
States, shall be punished as prescribed in subsection
(c).
(2) Treatment of threats, attempts and
conspiracies.--Whoever threatens to commit an offense
under paragraph (1), or attempts or conspires to do so,
shall be punished under subsection (c).
(b) Jurisdictional Bases.--
(1) Circumstances.--The circumstances referred to
in subsection (a) are--
(A) the mail or any facility of interstate
or foreign commerce is used in furtherance of
the offense;
(B) the offense obstructs, delays, or
affects interstate or foreign commerce, or
would have so obstructed, delayed, or affected
interstate or foreign commerce if the offense
had been consummated;
(C) the victim, or intended victim, is the
United States Government, a member of the
uniformed services, or any official, officer,
employee, or agent of the legislative,
executive, or judicial branches, or of any
department or agency, of the United States;
(D) the structure, conveyance, or other
real or personal property is, in whole or in
part, owned, possessed, or leased to the United
States, or any department or agency of the
United States;
(E) the offense is committed in the
territorial sea (including the airspace above
and the seabed and subsoil below, and
artificial islands and fixed structures erected
thereon) of the United States; or
(F) the offense is committed within the
special maritime and territorial jurisdiction
of the United States.
(2) Co-conspirators and accessories after the
fact.--Jurisdiction shall exist over all principals and
co-conspirators of an offense under this section, and
accessories after the fact to any offense under this
section, if at least one of the circumstances described
in subparagraphs (A) through (F) of paragraph (1) is
applicable to at least one offender.
(c) Penalties.--
(1) Penalties.--Whoever violates this section shall
be punished--
(A) for a killing, or if death results to
any person from any other conduct prohibited by
this section, by death, or by imprisonment for
any term of years or for life;
(B) for kidnapping, by imprisonment for any
term of years or for life;
(C) for maiming, by imprisonment for not
more than 35 years;
(D) for assault with a dangerous weapon or
assault resulting in serious bodily injury, by
imprisonment for not more than 30 years;
(E) for destroying or damaging any
structure, conveyance, or other real or
personal property, by imprisonment for not more
than 25 years;
(F) for attempting or conspiring to commit
an offense, for any term of years up to the
maximum punishment that would have applied had
the offense been completed; and
(G) for threatening to commit an offense
under this section, by imprisonment for not
more than 10 years.
(2) Consecutive sentence.--Notwithstanding any
other provision of law, the court shall not place on
probation any person convicted of a violation of this
section; nor shall the term of imprisonment imposed
under this section run concurrently with any other term
of imprisonment.
(d) Proof Requirements.--The following shall apply to
prosecutions under this section:
(1) Knowledge.--The prosecution is not required to
prove knowledge by any defendant of a jurisdictional
base alleged in the indictment.
(2) State law.--In a prosecution under this section
that is based upon the adoption of State law, only the
elements of the offense under State law, and not any
provisions pertaining to criminal procedure or
evidence, are adopted.
(e) Extraterritorial Jurisdiction.--There is
extraterritorial Federal jurisdiction--
(1) over any offense under subsection (a),
including any threat, attempt, or conspiracy to commit
such offense; and
(2) over conduct which, under section 3, renders
any person an accessory after the fact to an offense
under subsection (a).
(f) Investigative Authority.--In addition to any other
investigative authority with respect to violations of this
title, the Attorney General shall have primary investigative
responsibility for all Federal crimes of terrorism, and any
violation of section 351(e), 844(e), 844(f)(1), 956(b), 1361,
1366(b), 1366(c), 1751(e), 2152, or 2156 of this title, and the
Secretary of the Treasury shall assist the Attorney General at
the request of the Attorney General. Nothing in this section
shall be construed to interfere with the authority of the
United States Secret Service under section 3056.
(g) Definitions.--As used in this section--
(1) the term ``conduct transcending national
boundaries'' means conduct occurring outside of the
United States in addition to the conduct occurring in
the United States;
(2) the term ``facility of interstate or foreign
commerce'' has the meaning given that term in section
1958(b)(2);
(3) the term ``serious bodily injury'' has the
meaning given that term in section 1365(g)(3);
(4) the term ``territorial sea of the United
States'' means all waters extending seaward to 12
nautical miles from the baselines of the United States,
determined in accordance with international law; and
(5) the term ``Federal crime of terrorism'' means
an offense that--
(A) is calculated to influence or affect
the conduct of government by intimidation or
coercion, or to retaliate against government
conduct; and
(B) is a violation of--
(i) section 32 (relating to
destruction of aircraft or aircraft
facilities), 37 (relating to violence
at international airports), 81
(relating to arson within special
maritime and territorial jurisdiction),
175 or 175b (relating to biological
weapons), 175c (relating to variola
virus), 229 (relating to chemical
weapons), subsection (a), (b), (c), or
(d) of section 351 (relating to
congressional, cabinet, and Supreme
Court assassination and kidnaping), 831
(relating to nuclear materials), 832
(relating to participation in nuclear
and weapons of mass destruction threats
to the United States) 842(m) or (n)
(relating to plastic explosives),
844(f)(2) or (3) (relating to arson and
bombing of Government property risking
or causing death), 844(i) (relating to
arson and bombing of property used in
interstate commerce), 930(c) (relating
to killing or attempted killing during
an attack on a Federal facility with a
dangerous weapon), 956(a)(1) (relating
to conspiracy to murder, kidnap, or
maim persons abroad), 1030(a)(1)
(relating to protection of computers),
1030(a)(5)(A) resulting in damage as
defined in 1030(c)(4)(A)(i)(II) through
(VI) (relating to protection of
computers), 1114 (relating to killing
or attempted killing of officers and
employees of the United States), 1116
(relating to murder or manslaughter of
foreign officials, official guests, or
internationally protected persons),
1203 (relating to hostage taking), 1361
(relating to government property or
contracts), 1362 (relating to
destruction of communication lines,
stations, or systems), 1363 (relating
to injury to buildings or property
within special maritime and territorial
jurisdiction of the United States),
1366(a) (relating to destruction of an
energy facility), 1751(a), (b), (c), or
(d) (relating to Presidential and
Presidential staff assassination and
kidnaping), 1992 (relating to terrorist
attacks and other acts of violence
against railroad carriers and against
mass transportation systems on land, on
water, or through the air), 2155
(relating to destruction of national
defense materials, premises, or
utilities), 2156 (relating to national
defense material, premises, or
utilities), 2280 (relating to violence
against maritime navigation), 2280a
(relating to maritime safety), [2281]
2281 through 2281a (relating to
violence against maritime fixed
platforms), 2332 (relating to certain
homicides and other violence against
United States nationals occurring
outside of the United States), 2332a
(relating to use of weapons of mass
destruction), 2332b (relating to acts
of terrorism transcending national
boundaries), 2332f (relating to bombing
of public places and facilities), 2332g
(relating to missile systems designed
to destroy aircraft), 2332h (relating
to radiological dispersal devices),
2332i (relating to acts of nuclear
terrorism), 2339 (relating to harboring
terrorists), 2339A (relating to
providing material support to
terrorists), 2339B (relating to
providing material support to terrorist
organizations), 2339C (relating to
financing of terrorism), 2339D
(relating to military-type training
from a foreign terrorist organization),
or 2340A (relating to torture) of this
title;
(ii) sections 92 (relating to
prohibitions governing atomic weapons)
or 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic
Energy Act of 1954 (42 U.S.C. 2122 or
2284);
(iii) section 46502 (relating to
aircraft piracy), the second sentence
of section 46504 (relating to assault
on a flight crew with a dangerous
weapon), section 46505(b)(3) or (c)
(relating to explosive or incendiary
devices, or endangerment of human life
by means of weapons, on aircraft),
section 46506 if homicide or attempted
homicide is involved (relating to
application of certain criminal laws to
acts on aircraft), or section 60123(b)
(relating to destruction of interstate
gas or hazardous liquid pipeline
facility) of title 49; or
(iv) section 1010A of the
Controlled Substances Import and Export
Act (relating to narco-terrorism).
* * * * * * *
Sec. 2332i. Acts of nuclear terrorism
(a) Offenses.--
(1) In general.--Whoever knowingly and unlawfully--
(A) possesses radioactive material or makes
or possesses a device--
(i) with the intent to cause death
or serious bodily injury; or
(ii) with the intent to cause
substantial damage to property or the
environment; or
(B) uses in any way radioactive material or
a device, or uses or damages or interferes with
the operation of a nuclear facility in a manner
that causes the release of or increases the
risk of the release of radioactive material, or
causes radioactive contamination or exposure to
radiation--
(i) with the intent to cause death
or serious bodily injury or with the
knowledge that such act is likely to
cause death or serious bodily injury;
(ii) with the intent to cause
substantial damage to property or the
environment or with the knowledge that
such act is likely to cause substantial
damage to property or the environment;
or
(iii) with the intent to compel a
person, an international organization
or a country to do or refrain from
doing an act,
shall be punished as prescribed in subsection
(c).
(2) Threats.--Whoever, under circumstances in which
the threat may reasonably be believed, threatens to
commit an offense under paragraph (1) shall be punished
as prescribed in subsection (c). Whoever demands
possession of or access to radioactive material, a
device or a nuclear facility by threat or by use of
force shall be punished as prescribed in subsection
(c).
(3) Attempts and conspiracies.--Whoever attempts to
commit an offense under paragraph (1) or conspires to
commit an offense under paragraph (1) or (2) shall be
punished as prescribed in subsection (c).
(b) Jurisdiction.--Conduct prohibited by subsection (a) is
within the jurisdiction of the United States if--
(1) the prohibited conduct takes place in the
United States or the special aircraft jurisdiction of
the United States;
(2) the prohibited conduct takes place outside of
the United States and--
(A) is committed by a national of the
United States, a United States corporation or
legal entity or a stateless person whose
habitual residence is in the United States;
(B) is committed on board a vessel of the
United States or a vessel subject to the
jurisdiction of the United States (as defined
in section 70502 of title 46) or on board an
aircraft that is registered under United States
law, at the time the offense is committed; or
(C) is committed in an attempt to compel
the United States to do or abstain from doing
any act, or constitutes a threat directed at
the United States;
(3) the prohibited conduct takes place outside of
the United States and a victim or an intended victim is
a national of the United States or a United States
corporation or legal entity, or the offense is
committed against any state or government facility of
the United States; or
(4) a perpetrator of the prohibited conduct is
found in the United States.
(c) Penalties.--Whoever violates this section shall be
fined not more than $2,000,000 and shall be imprisoned for any
term of years or for life.
(d) Nonapplicability.--This section does not apply to--
(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law
of war, which are governed by that law; or
(2) activities undertaken by military forces of a
state in the exercise of their official duties.
(e) Definitions.--As used in this section, the term--
(1) ``armed conflict'' has the meaning given that
term in section 2332f(e)(11) of this title;
(2) ``device'' means:
(A) any nuclear explosive device; or
(B) any radioactive material dispersal or
radiation-emitting device that may, owing to
its radiological properties, cause death,
serious bodily injury or substantial damage to
property or the environment;
(3) ``international organization'' has the meaning
given that term in section 831(f)(3) of this title;
(4) ``military forces of a state'' means the armed
forces of a country that are organized, trained and
equipped under its internal law for the primary purpose
of national defense or security and persons acting in
support of those armed forces who are under their
formal command, control and responsibility;
(5) ``national of the United States'' has the
meaning given that term in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22));
(6) ``nuclear facility'' means:
(A) any nuclear reactor, including reactors
on vessels, vehicles, aircraft or space objects
for use as an energy source in order to propel
such vessels, vehicles, aircraft or space
objects or for any other purpose;
(B) any plant or conveyance being used for
the production, storage, processing or
transport of radioactive material; or
(C) a facility (including associated
buildings and equipment) in which nuclear
material is produced, processed, used, handled,
stored or disposed of, if damage to or
interference with such facility could lead to
the release of significant amounts of radiation
or radioactive material;
(7) ``nuclear material'' has the meaning given that
term in section 831(f)(1) of this title;
(8) ``radioactive material'' means nuclear material
and other radioactive substances that contain nuclides
that undergo spontaneous disintegration (a process
accompanied by emission of one or more types of
ionizing radiation, such as alpha-, beta-, neutron
particles and gamma rays) and that may, owing to their
radiological or fissile properties, cause death,
serious bodily injury or substantial damage to property
or to the environment;
(9) ``serious bodily injury'' has the meaning given
that term in section 831(f)(4) of this title;
(10) ``state'' has the same meaning as that term
has under international law, and includes all political
subdivisions thereof;
(11) ``state or government facility'' has the
meaning given that term in section 2332f(e)(3) of this
title;
(12) ``United States corporation or legal entity''
means any corporation or other entity organized under
the laws of the United States or any State,
Commonwealth, territory, possession or district of the
United States;
(13) ``vessel'' has the meaning given that term in
section 1502(19) of title 33; and
(14) ``vessel of the United States'' has the
meaning given that term in section 70502 of title 46.
* * * * * * *
Sec. 2339B. Providing material support or resources to designated
foreign terrorist organizations
(a) Prohibited Activities.--
(1) Unlawful conduct.--Whoever knowingly provides
material support or resources to a foreign terrorist
organization, or attempts or conspires to do so, shall
be fined under this title or imprisoned not more than
[15 years] 20 years, or both, and, if the death of any
person results, shall be imprisoned for any term of
years or for life. To violate this paragraph, a person
must have knowledge that the organization is a
designated terrorist organization (as defined in
subsection (g)(6)), that the organization has engaged
or engages in terrorist activity (as defined in section
212(a)(3)(B) of the Immigration and Nationality Act),
or that the organization has engaged or engages in
terrorism (as defined in section 140(d)(2) of the
Foreign Relations Authorization Act, Fiscal Years 1988
and 1989).
(2) Financial institutions.--Except as authorized
by the Secretary, any financial institution that
becomes aware that it has possession of, or control
over, any funds in which a foreign terrorist
organization, or its agent, has an interest, shall--
(A) retain possession of, or maintain
control over, such funds; and
(B) report to the Secretary the existence
of such funds in accordance with regulations
issued by the Secretary.
(b) Civil Penalty.--Any financial institution that
knowingly fails to comply with subsection (a)(2) shall be
subject to a civil penalty in an amount that is the greater
of--
(A) $50,000 per violation; or
(B) twice the amount of which the financial
institution was required under subsection (a)(2) to
retain possession or control.
(c) Injunction.--Whenever it appears to the Secretary or
the Attorney General that any person is engaged in, or is about
to engage in, any act that constitutes, or would constitute, a
violation of this section, the Attorney General may initiate
civil action in a district court of the United States to enjoin
such violation.
(d) Extraterritorial Jurisdiction.--
(1) In general.--There is jurisdiction over an
offense under subsection (a) if--
(A) an offender is a national of the United
States (as defined in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(22))) or an alien lawfully admitted for
permanent residence in the United States (as
defined in section 101(a)(20) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(20)));
(B) an offender is a stateless person whose
habitual residence is in the United States;
(C) after the conduct required for the
offense occurs an offender is brought into or
found in the United States, even if the conduct
required for the offense occurs outside the
United States;
(D) the offense occurs in whole or in part
within the United States;
(E) the offense occurs in or affects
interstate or foreign commerce; or
(F) an offender aids or abets any person
over whom jurisdiction exists under this
paragraph in committing an offense under
subsection (a) or conspires with any person
over whom jurisdiction exists under this
paragraph to commit an offense under subsection
(a).
(2) Extraterritorial jurisdiction.--There is
extraterritorial Federal jurisdiction over an offense
under this section.
(e) Investigations.--
(1) In general.--The Attorney General shall conduct
any investigation of a possible violation of this
section, or of any license, order, or regulation issued
pursuant to this section.
(2) Coordination with the department of the
treasury.--The Attorney General shall work in
coordination with the Secretary in investigations
relating to--
(A) the compliance or noncompliance by a
financial institution with the requirements of
subsection (a)(2); and
(B) civil penalty proceedings authorized
under subsection (b).
(3) Referral.--Any evidence of a criminal violation
of this section arising in the course of an
investigation by the Secretary or any other Federal
agency shall be referred immediately to the Attorney
General for further investigation. The Attorney General
shall timely notify the Secretary of any action taken
on referrals from the Secretary, and may refer
investigations to the Secretary for remedial licensing
or civil penalty action.
(f) Classified Information in Civil Proceedings Brought by
the United States.--
(1) Discovery of classified information by
defendants.--
(A) Request by United States.--In any civil
proceeding under this section, upon request
made ex parte and in writing by the United
States, a court, upon a sufficient showing, may
authorize the United States to--
(i) redact specified items of
classified information from documents
to be introduced into evidence or made
available to the defendant through
discovery under the Federal Rules of
Civil Procedure;
(ii) substitute a summary of the
information for such classified
documents; or
(iii) substitute a statement
admitting relevant facts that the
classified information would tend to
prove.
(B) Order granting request.--If the court
enters an order granting a request under this
paragraph, the entire text of the documents to
which the request relates shall be sealed and
preserved in the records of the court to be
made available to the appellate court in the
event of an appeal.
(C) Denial of request.--If the court enters
an order denying a request of the United States
under this paragraph, the United States may
take an immediate, interlocutory appeal in
accordance with paragraph (5). For purposes of
such an appeal, the entire text of the
documents to which the request relates,
together with any transcripts of arguments made
ex parte to the court in connection therewith,
shall be maintained under seal and delivered to
the appellate court.
(2) Introduction of classified information;
precautions by court.--
(A) Exhibits.--To prevent unnecessary or
inadvertent disclosure of classified
information in a civil proceeding brought by
the United States under this section, the
United States may petition the court ex parte
to admit, in lieu of classified writings,
recordings, or photographs, one or more of the
following:
(i) Copies of items from which
classified information has been
redacted.
(ii) Stipulations admitting
relevant facts that specific classified
information would tend to prove.
(iii) A declassified summary of the
specific classified information.
(B) Determination by court.--The court
shall grant a request under this paragraph if
the court finds that the redacted item,
stipulation, or summary is sufficient to allow
the defendant to prepare a defense.
(3) Taking of trial testimony.--
(A) Objection.--During the examination of a
witness in any civil proceeding brought by the
United States under this subsection, the United
States may object to any question or line of
inquiry that may require the witness to
disclose classified information not previously
found to be admissible.
(B) Action by court.--In determining
whether a response is admissible, the court
shall take precautions to guard against the
compromise of any classified information,
including--
(i) permitting the United States to
provide the court, ex parte, with a
proffer of the witness's response to
the question or line of inquiry; and
(ii) requiring the defendant to
provide the court with a proffer of the
nature of the information that the
defendant seeks to elicit.
(C) Obligation of defendant.--In any civil
proceeding under this section, it shall be the
defendant's obligation to establish the
relevance and materiality of any classified
information sought to be introduced.
(4) Appeal.--If the court enters an order denying a
request of the United States under this subsection, the
United States may take an immediate interlocutory
appeal in accordance with paragraph (5).
(5) Interlocutory appeal.--
(A) Subject of appeal.--An interlocutory
appeal by the United States shall lie to a
court of appeals from a decision or order of a
district court--
(i) authorizing the disclosure of
classified information;
(ii) imposing sanctions for
nondisclosure of classified
information; or
(iii) refusing a protective order
sought by the United States to prevent
the disclosure of classified
information.
(B) Expedited consideration.--
(i) In general.--An appeal taken
pursuant to this paragraph, either
before or during trial, shall be
expedited by the court of appeals.
(ii) Appeals prior to trial.--If an
appeal is of an order made prior to
trial, an appeal shall be taken not
later than 14 days after the decision
or order appealed from, and the trial
shall not commence until the appeal is
resolved.
(iii) Appeals during trial.--If an
appeal is taken during trial, the trial
court shall adjourn the trial until the
appeal is resolved, and the court of
appeals--
(I) shall hear argument on
such appeal not later than 4
days after the adjournment of
the trial, excluding
intermediate weekends and
holidays;
(II) may dispense with
written briefs other than the
supporting materials previously
submitted to the trial court;
(III) shall render its
decision not later than 4 days
after argument on appeal,
excluding intermediate weekends
and holidays; and
(IV) may dispense with the
issuance of a written opinion
in rendering its decision.
(C) Effect of ruling.--An interlocutory
appeal and decision shall not affect the right
of the defendant, in a subsequent appeal from a
final judgment, to claim as error reversal by
the trial court on remand of a ruling appealed
from during trial.
(6) Construction.--Nothing in this subsection shall
prevent the United States from seeking protective
orders or asserting privileges ordinarily available to
the United States to protect against the disclosure of
classified information, including the invocation of the
military and State secrets privilege.
(g) Definitions.--As used in this section--
(1) the term ``classified information'' has the
meaning given that term in section 1(a) of the
Classified Information Procedures Act (18 U.S.C. App.);
(2) the term ``financial institution'' has the same
meaning as in section 5312(a)(2) of title 31, United
States Code;
(3) the term ``funds'' includes coin or currency of
the United States or any other country, traveler's
checks, personal checks, bank checks, money orders,
stocks, bonds, debentures, drafts, letters of credit,
any other negotiable instrument, and any electronic
representation of any of the foregoing;
(4) the term ``material support or resources'' has
the same meaning given that term in section 2339A
(including the definitions of ``training'' and ``expert
advice or assistance'' in that section);
(5) the term ``Secretary'' means the Secretary of
the Treasury; and
(6) the term ``terrorist organization'' means an
organization designated as a terrorist organization
under section 219 of the Immigration and Nationality
Act.
(h) Provision of Personnel.--No person may be prosecuted
under this section in connection with the term ``personnel''
unless that person has knowingly provided, attempted to
provide, or conspired to provide a foreign terrorist
organization with 1 or more individuals (who may be or include
himself) to work under that terrorist organization's direction
or control or to organize, manage, supervise, or otherwise
direct the operation of that organization. Individuals who act
entirely independently of the foreign terrorist organization to
advance its goals or objectives shall not be considered to be
working under the foreign terrorist organization's direction
and control.
(i) Rule of Construction.--Nothing in this section shall be
construed or applied so as to abridge the exercise of rights
guaranteed under the First Amendment to the Constitution of the
United States.
(j) Exception.--No person may be prosecuted under this
section in connection with the term ``personnel'',
``training'', or ``expert advice or assistance'' if the
provision of that material support or resources to a foreign
terrorist organization was approved by the Secretary of State
with the concurrence of the Attorney General. The Secretary of
State may not approve the provision of any material support
that may be used to carry out terrorist activity (as defined in
section 212(a)(3)(B)(iii) of the Immigration and Nationality
Act).
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
Sec. 2702. Voluntary disclosure of customer communications or records
(a) Prohibitions.--Except as provided in subsection (b) or
(c)--
(1) a person or entity providing an electronic
communication service to the public shall not knowingly
divulge to any person or entity the contents of a
communication while in electronic storage by that
service; and
(2) a person or entity providing remote computing
service to the public shall not knowingly divulge to
any person or entity the contents of any communication
which is carried or maintained on that service--
(A) on behalf of, and received by means of
electronic transmission from (or created by
means of computer processing of communications
received by means of electronic transmission
from), a subscriber or customer of such
service;
(B) solely for the purpose of providing
storage or computer processing services to such
subscriber or customer, if the provider is not
authorized to access the contents of any such
communications for purposes of providing any
services other than storage or computer
processing; and
(3) a provider of remote computing service or
electronic communication service to the public shall
not knowingly divulge a record or other information
pertaining to a subscriber to or customer of such
service (not including the contents of communications
covered by paragraph (1) or (2)) to any governmental
entity.
(b) Exceptions for disclosure of communications.--A
provider described in subsection (a) may divulge the contents
of a communication--
(1) to an addressee or intended recipient of such
communication or an agent of such addressee or intended
recipient;
(2) as otherwise authorized in section 2517,
2511(2)(a), or 2703 of this title;
(3) with the lawful consent of the originator or an
addressee or intended recipient of such communication,
or the subscriber in the case of remote computing
service;
(4) to a person employed or authorized or whose
facilities are used to forward such communication to
its destination;
(5) as may be necessarily incident to the rendition
of the service or to the protection of the rights or
property of the provider of that service;
(6) to the National Center for Missing and
Exploited Children, in connection with a report
submitted thereto under section 2258A;
(7) to a law enforcement agency--
(A) if the contents--
(i) were inadvertently obtained by
the service provider; and
(ii) appear to pertain to the
commission of a crime;
(8) to a governmental entity, if the provider, in
good faith, believes that an emergency involving danger
of death or serious physical injury to any person
requires disclosure without delay of communications
relating to the emergency.
(c) Exceptions for Disclosure of Customer Records.--A
provider described in subsection (a) may divulge a record or
other information pertaining to a subscriber to or customer of
such service (not including the contents of communications
covered by subsection (a)(1) or (a)(2))--
(1) as otherwise authorized in section 2703;
(2) with the lawful consent of the customer or
subscriber;
(3) as may be necessarily incident to the rendition
of the service or to the protection of the rights or
property of the provider of that service;
(4) to a governmental entity, if the provider, in
good faith, believes that an emergency involving danger
of death or serious physical injury to any person
requires disclosure without delay of information
relating to the emergency;
(5) to the National Center for Missing and
Exploited Children, in connection with a report
submitted thereto under section 2258A; or
(6) to any person other than a governmental entity.
(d) Reporting of Emergency Disclosures.--On an annual
basis, the Attorney General shall submit to the Committee on
the Judiciary of the House of Representatives and the Committee
on the Judiciary of the Senate a report containing--
(1) the number of accounts from which the
Department of Justice has received voluntary
disclosures under subsection (b)(8)[; and];
(2) a summary of the basis for disclosure in those
instances where--
(A) voluntary disclosures under subsection
(b)(8) were made to the Department of Justice;
and
(B) the investigation pertaining to those
disclosures was closed without the filing of
criminal charges[.]; and
(3) the number of accounts from which the
Department of Justice has received voluntary
disclosures under subsection (c)(4).
* * * * * * *
Sec. 2709. Counterintelligence access to telephone toll and
transactional records
(a) Duty to Provide.--A wire or electronic communication
service provider shall comply with a request for subscriber
information and toll billing records information, or electronic
communication transactional records in its custody or
possession made by the Director of the Federal Bureau of
Investigation under subsection (b) of this section.
(b) Required Certification.--The Director of the Federal
Bureau of Investigation, or his designee in a position not
lower than Deputy Assistant Director at Bureau headquarters or
a Special Agent in Charge in a Bureau field office designated
by the Director, [may] may, using a term that specifically
identifies a person, entity, telephone number, or account as
the basis for a request--
(1) request the name, address, length of service,
and local and long distance toll billing records of a
person or entity if the Director (or his designee)
certifies in writing to the wire or electronic
communication service provider to which the request is
made that the name, address, length of service, and
toll billing records sought are relevant to an
authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a
United States person is not conducted solely on the
basis of activities protected by the first amendment to
the Constitution of the United States; and
(2) request the name, address, and length of
service of a person or entity if the Director (or his
designee) certifies in writing to the wire or
electronic communication service provider to which the
request is made that the information sought is relevant
to an authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a
United States person is not conducted solely upon the
basis of activities protected by the first amendment to
the Constitution of the United States.
[(c) Prohibition of Certain Disclosure.--
[(1) If the Director of the Federal Bureau of
Investigation, or his designee in a position not lower
than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office
designated by the Director, certifies that otherwise
there may result a danger to the national security of
the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation,
interference with diplomatic relations, or danger to
the life or physical safety of any person, no wire or
electronic communications service provider, or officer,
employee, or agent thereof, shall disclose to any
person (other than those to whom such disclosure is
necessary to comply with the request or an attorney to
obtain legal advice or legal assistance with respect to
the request) that the Federal Bureau of Investigation
has sought or obtained access to information or records
under this section.
[(2) The request shall notify the person or entity
to whom the request is directed of the nondisclosure
requirement under paragraph (1).
[(3) Any recipient disclosing to those persons
necessary to comply with the request or to an attorney
to obtain legal advice or legal assistance with respect
to the request shall inform such person of any
applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be
subject to the same prohibitions on disclosure under
paragraph (1).
[(4) At the request of the Director of the Federal
Bureau of Investigation or the designee of the
Director, any person making or intending to make a
disclosure under this section shall identify to the
Director or such designee the person to whom such
disclosure will be made or to whom such disclosure was
made prior to the request, except that nothing in this
section shall require a person to inform the Director
or such designee of the identity of an attorney to whom
disclosure was made or will be made to obtain legal
advice or legal assistance with respect to the request
under subsection (a).]
(c) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is
issued under subparagraph (B) and notice of the
right to judicial review under subsection (d)
is provided, no wire or electronic
communication service provider that receives a
request under subsection (b), or officer,
employee, or agent thereof, shall disclose to
any person that the Federal Bureau of
Investigation has sought or obtained access to
information or records under this section.
(B) Certification.--The requirements of
subparagraph (A) shall apply if the Director of
the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no
lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a
Bureau field office, certifies that the absence
of a prohibition of disclosure under this
subsection may result in--
(i) a danger to the national
security of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A wire or electronic
communication service provider that receives a
request under subsection (b), or officer,
employee, or agent thereof, may disclose
information otherwise subject to any applicable
nondisclosure requirement to--
(i) those persons to whom
disclosure is necessary in order to
comply with the request;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(iii) other persons as permitted by
the Director of the Federal Bureau of
Investigation or the designee of the
Director.
(B) Application.--A person to whom
disclosure is made under subparagraph (A) shall
be subject to the nondisclosure requirements
applicable to a person to whom a request is
issued under subsection (b) in the same manner
as the person to whom the request is issued.
(C) Notice.--Any recipient that discloses
to a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall notify the
person of the applicable nondisclosure
requirement.
(D) Identification of disclosure
recipients.--At the request of the Director of
the Federal Bureau of Investigation or the
designee of the Director, any person making or
intending to make a disclosure under clause (i)
or (iii) of subparagraph (A) shall identify to
the Director or such designee the person to
whom such disclosure will be made or to whom
such disclosure was made prior to the request.
(d) Judicial Review.--
(1) In general.--A request under subsection (b) or
a nondisclosure requirement imposed in connection with
such request under subsection (c) shall be subject to
judicial review under section 3511.
(2) Notice.--A request under subsection (b) shall
include notice of the availability of judicial review
described in paragraph (1).
[(d)] (e) Dissemination by Bureau.--The Federal Bureau of
Investigation may disseminate information and records obtained
under this section only as provided in guidelines approved by
the Attorney General for foreign intelligence collection and
foreign counterintelligence investigations conducted by the
Federal Bureau of Investigation, and, with respect to
dissemination to an agency of the United States, only if such
information is clearly relevant to the authorized
responsibilities of such agency.
[(e)] (f) Requirement That Certain Congressional Bodies Be
Informed.--On a semiannual basis the Director of the Federal
Bureau of Investigation shall fully inform the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate, and the
Committee on the Judiciary of the House of Representatives and
the Committee on the Judiciary of the Senate, concerning all
requests made under subsection (b) of this section.
[(f)] (g) Libraries.--A library (as that term is defined in
section 213(1) of the Library Services and Technology Act (20
U.S.C. 9122(1)), the services of which include access to the
Internet, books, journals, magazines, newspapers, or other
similar forms of communication in print or digitally by patrons
for their use, review, examination, or circulation, is not a
wire or electronic communication service provider for purposes
of this section, unless the library is providing the services
defined in section 2510(15) (``electronic communication
service'') of this title.
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 223--WITNESSES AND EVIDENCE
* * * * * * *
Sec. 3511. Judicial review of requests for information
(a) The recipient of a request for records, a report, or
other information under section 2709(b) of this title, section
626(a) or (b) or 627(a) of the Fair Credit Reporting Act,
section 1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947 may, in the
United States district court for the district in which that
person or entity does business or resides, petition for an
order modifying or setting aside the request. The court may
modify or set aside the request if compliance would be
unreasonable, oppressive, or otherwise unlawful.
[(b)(1) The recipient of a request for records, a report,
or other information under section 2709(b) of this title,
section 626(a) or (b) or 627(a) of the Fair Credit Reporting
Act, section 1114(a)(5)(A) of the Right to Financial Privacy
Act, or section 802(a) of the National Security Act of 1947,
may petition any court described in subsection (a) for an order
modifying or setting aside a nondisclosure requirement imposed
in connection with such a request.
[(2) If the petition is filed within one year of the
request for records, a report, or other information under
section 2709(b) of this title, section 626(a) or (b) or 627(a)
of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the
Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, the court may modify or set
aside such a nondisclosure requirement if it finds that there
is no reason to believe that disclosure may endanger the
national security of the United States, interfere with a
criminal, counterterrorism, or counterintelligence
investigation, interfere with diplomatic relations, or endanger
the life or physical safety of any person. If, at the time of
the petition, the Attorney General, Deputy Attorney General, an
Assistant Attorney General, or the Director of the Federal
Bureau of Investigation, or in the case of a request by a
department, agency, or instrumentality of the Federal
Government other than the Department of Justice, the head or
deputy head of such department, agency, or instrumentality,
certifies that disclosure may endanger the national security of
the United States or interfere with diplomatic relations, such
certification shall be treated as conclusive unless the court
finds that the certification was made in bad faith.
[(3) If the petition is filed one year or more after the
request for records, a report, or other information under
section 2709(b) of this title, section 626(a) or (b) or 627(a)
of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the
Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, the Attorney General, Deputy
Attorney General, an Assistant Attorney General, or the
Director of the Federal Bureau of Investigation, or his
designee in a position not lower than Deputy Assistant Director
at Bureau headquarters or a Special Agent in Charge in a Bureau
field office designated by the Director, or in the case of a
request by a department, agency, or instrumentality of the
Federal Government other than the Federal Bureau of
Investigation, the head or deputy head of such department,
agency, or instrumentality, within ninety days of the filing of
the petition, shall either terminate the nondisclosure
requirement or re-certify that disclosure may result in a
danger to the national security of the United States,
interference with a criminal, counterterrorism, or
counterintelligence investigation, interference with diplomatic
relations, or danger to the life or physical safety of any
person. In the event of re-certification, the court may modify
or set aside such a nondisclosure requirement if it finds that
there is no reason to believe that disclosure may endanger the
national security of the United States, interfere with a
criminal, counterterrorism, or counterintelligence
investigation, interfere with diplomatic relations, or endanger
the life or physical safety of any person. If the
recertification that disclosure may endanger the national
security of the United States or interfere with diplomatic
relations is made by the Attorney General, Deputy Attorney
General, an Assistant Attorney General, or the Director of the
Federal Bureau of Investigation, such certification shall be
treated as conclusive unless the court finds that the
recertification was made in bad faith. If the court denies a
petition for an order modifying or setting aside a
nondisclosure requirement under this paragraph, the recipient
shall be precluded for a period of one year from filing another
petition to modify or set aside such nondisclosure
requirement.]
(b) Nondisclosure.--
(1) In general.--
(A) Notice.--If a recipient of a request or
order for a report, records, or other
information under section 2709 of this title,
section 626 or 627 of the Fair Credit Reporting
Act (15 U.S.C. 1681u and 1681v), section 1114
of the Right to Financial Privacy Act of 1978
(12 U.S.C. 3414), or section 802 of the
National Security Act of 1947 (50 U.S.C. 3162),
wishes to have a court review a nondisclosure
requirement imposed in connection with the
request or order, the recipient may notify the
Government or file a petition for judicial
review in any court described in subsection
(a).
(B) Application.--Not later than 30 days
after the date of receipt of a notification
under subparagraph (A), the Government shall
apply for an order prohibiting the disclosure
of the existence or contents of the relevant
request or order. An application under this
subparagraph may be filed in the district court
of the United States for the judicial district
in which the recipient of the order is doing
business or in the district court of the United
States for any judicial district within which
the authorized investigation that is the basis
for the request is being conducted. The
applicable nondisclosure requirement shall
remain in effect during the pendency of
proceedings relating to the requirement.
(C) Consideration.--A district court of the
United States that receives a petition under
subparagraph (A) or an application under
subparagraph (B) should rule expeditiously, and
shall, subject to paragraph (3), issue a
nondisclosure order that includes conditions
appropriate to the circumstances.
(2) Application contents.--An application for a
nondisclosure order or extension thereof or a response
to a petition filed under paragraph (1) shall include a
certification from the Attorney General, Deputy
Attorney General, an Assistant Attorney General, or the
Director of the Federal Bureau of Investigation, or a
designee in a position not lower than Deputy Assistant
Director at Bureau headquarters or a Special Agent in
Charge in a Bureau field office designated by the
Director, or in the case of a request by a department,
agency, or instrumentality of the Federal Government
other than the Department of Justice, the head or
deputy head of the department, agency, or
instrumentality, containing a statement of specific
facts indicating that the absence of a prohibition of
disclosure under this subsection may result in--
(A) a danger to the national security of
the United States;
(B) interference with a criminal,
counterterrorism, or counterintelligence
investigation;
(C) interference with diplomatic relations;
or
(D) danger to the life or physical safety
of any person.
(3) Standard.--A district court of the United
States shall issue a nondisclosure order or extension
thereof under this subsection if the court determines
that there is reason to believe that disclosure of the
information subject to the nondisclosure requirement
during the applicable time period may result in--
(A) a danger to the national security of
the United States;
(B) interference with a criminal,
counterterrorism, or counterintelligence
investigation;
(C) interference with diplomatic relations;
or
(D) danger to the life or physical safety
of any person.
(c) In the case of a failure to comply with a request for
records, a report, or other information made to any person or
entity under section 2709(b) of this title, section 626(a) or
(b) or 627(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or section
802(a) of the National Security Act of 1947, the Attorney
General may invoke the aid of any district court of the United
States within the jurisdiction in which the investigation is
carried on or the person or entity resides, carries on
business, or may be found, to compel compliance with the
request. The court may issue an order requiring the person or
entity to comply with the request. Any failure to obey the
order of the court may be punished by the court as contempt
thereof. Any process under this section may be served in any
judicial district in which the person or entity may be found.
(d) In all proceedings under this section, subject to any
right to an open hearing in a contempt proceeding, the court
must close any hearing to the extent necessary to prevent an
unauthorized disclosure of a request for records, a report, or
other information made to any person or entity under section
2709(b) of this title, section 626(a) or (b) or 627(a) of the
Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right
to Financial Privacy Act, or section 802(a) of the National
Security Act of 1947. Petitions, filings, records, orders, and
subpoenas must also be kept under seal to the extent and as
long as necessary to prevent the unauthorized disclosure of a
request for records, a report, or other information made to any
person or entity under section 2709(b) of this title, section
626(a) or (b) or 627(a) of the Fair Credit Reporting Act,
section 1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947.
(e) In all proceedings under this section, the court shall,
upon request of the government, review ex parte and in camera
any government submission or portions thereof, which may
include classified information.
* * * * * * *
----------
RIGHT TO FINANCIAL PRIVACY ACT OF 1978
* * * * * * *
TITLE XI--RIGHT TO FINANCIAL PRIVACY
* * * * * * *
special procedures
Sec. 1114. (a)(1) Nothing in this title (except sections
1115, 1117, 1118, and 1121) shall apply to the production and
disclosure of financial records pursuant to requests from--
(A) a Government authority authorized to conduct
foreign counter- or foreign positive-intelligence
activities for purposes of conducting such activities;
(B) the Secret Service for the purpose of
conducting its protective functions (18 U.S.C. 3056; 3
U.S.C. 202, Public Law 90-331, as amended); or
(C) a Government authority authorized to
conduct investigations of, or intelligence or
counterintelligence analyses related to,
international terrorism for the purpose of
conducting such investigations or analyses.
(2) In the instances specified in paragraph (1), the
Government authority shall submit to the financial institution
the certificate required in section 1103(b) signed by a
supervisory official of a rank designated by the head of the
Government authority[.] and a term that specifically identifies
a customer, entity, or account to be used as the basis for the
production and disclosure of financial records.
(3)(A) If the Government authority described in
paragraph (1) or the Secret Service, as the case may
be, certifies that otherwise there may result a danger
to the national security of the United States,
interference with a criminal, counterterrorism, or
counterintelligence investigation, interference with
diplomatic relations, or danger to the life or physical
safety of any person, no financial institution, or
officer, employee, or agent of such institution, shall
disclose to any person (other than those to whom such
disclosure is necessary to comply with the request or
an attorney to obtain legal advice or legal assistance
with respect to the request) that the Government
authority or the Secret Service has sought or obtained
access to a customer's financial records.
(B) The request shall notify the person or entity
to whom the request is directed of the nondisclosure
requirement under subparagraph (A).
(C) Any recipient disclosing to those persons
necessary to comply with the request or to an attorney
to obtain legal advice or legal assistance with respect
to the request shall inform such persons of any
applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be
subject to the same prohibitions on disclosure under
subparagraph (A).
(D) At the request of the authorized Government
authority or the Secret Service, any person making or
intending to make a disclosure under this section shall
identify to the requesting official of the authorized
Government authority or the Secret Service the person
to whom such disclosure will be made or to whom such
disclosure was made prior to the request, except that
nothing in this section shall require a person to
inform the requesting official of the authorized
Government authority or the Secret Service of the
identity of an attorney to whom disclosure was made or
will be made to obtain legal advice or legal assistance
with respect to the request for financial records under
this subsection.
(4) The Government authority specified in paragraph (1)
shall compile an annual tabulation of the occasions in which
this section was used.
(5)(A) Financial institutions, and officers, employees, and
agents thereof, shall comply with a request for a customer's or
entity's financial records made pursuant to this subsection by
the Federal Bureau of Investigation when the Director of the
Federal Bureau of Investigation (or the Director's designee in
a position not lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge in a Bureau field
office designated by the Director) certifies in writing to the
financial institution that such records are sought for foreign
counter intelligence purposes to protect against international
terrorism or clandestine intelligence activities, provided that
such an investigation of a United States person is not
conducted solely upon the basis of activities protected by the
first amendment to the Constitution of the United States.
(B) The Federal Bureau of Investigation may disseminate
information obtained pursuant to this paragraph only as
provided in guidelines approved by the Attorney General for
foreign intelligence collection and foreign counterintelligence
investigations conducted by the Federal Bureau of
Investigation, and, with respect to dissemination to an agency
of the United States, only if such information is clearly
relevant to the authorized responsibilities of such agency.
(C) On the dates provided in section 507 of the National
Security Act of 1947, the Attorney General shall fully inform
the congressional intelligence committees (as defined in
section 3 of that Act (50 U.S.C. 401a)) concerning all requests
made pursuant to this paragraph.
[(D) Prohibition of certain disclosure.--
[(i) If the Director of the Federal Bureau
of Investigation, or his designee in a position
not lower than Deputy Assistant Director at
Bureau headquarters or a Special Agent in
Charge in a Bureau field office designated by
the Director, certifies that otherwise there
may result a danger to the national security of
the United States, interference with a
criminal, counterterrorism, or
counterintelligence investigation, interference
with diplomatic relations, or danger to the
life or physical safety of any person, no
financial institution, or officer, employee, or
agent of such institution, shall disclose to
any person (other than those to whom such
disclosure is necessary to comply with the
request or an attorney to obtain legal advice
or legal assistance with respect to the
request) that the Federal Bureau of
Investigation has sought or obtained access to
a customer's or entity's financial records
under subparagraph (A).
[(ii) The request shall notify the person
or entity to whom the request is directed of
the nondisclosure requirement under clause (i).
[(iii) Any recipient disclosing to those
persons necessary to comply with the request or
to an attorney to obtain legal advice or legal
assistance with respect to the request shall
inform such persons of any applicable
nondisclosure requirement. Any person who
receives a disclosure under this subsection
shall be subject to the same prohibitions on
disclosure under clause (i).
[(iv) At the request of the Director of the
Federal Bureau of Investigation or the designee
of the Director, any person making or intending
to make a disclosure under this section shall
identify to the Director or such designee the
person to whom such disclosure will be made or
to whom such disclosure was made prior to the
request, except that nothing in this section
shall require a person to inform the Director
or such designee of the identity of an attorney
to whom disclosure was made or will be made to
obtain legal advice or legal assistance with
respect to the request for financial records
under subparagraph (A).]
(b)(1) Nothing in this title shall prohibit a Government
authority from obtaining financial records from a financial
institution if the Government authority determines that delay
in obtaining access to such records would create imminent
danger of--
(A) physical injury to any person;
(B) serious property damage; or
(C) flight to avoid prosecution.
(2) In the instances specified in paragraph (1), the
Government shall submit to the financial institution the
certificate required in section 1103(b) signed by a supervisory
official of a rank designated by the head of the Government
authority.
(3) Within five days of obtaining access to financial
records under this subsection, the Government authority shall
file with the appropriate court a signed, sworn statement of a
supervisory official of a rank designated by the head of the
Government authority setting forth the grounds for the
emergency access. The Government authority shall thereafter
comply with notice the provisions of section 1109(c).
(4) The Government authority specified in paragraph (1)
shall compile an annual tabulation of the occasions in which
this section was used.
(c) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is
issued under subparagraph (B) and notice of the
right to judicial review under subsection (d)
is provided, no financial institution that
receives a request under subsection (a), or
officer, employee, or agent thereof, shall
disclose to any person that the Federal Bureau
of Investigation has sought or obtained access
to information or records under subsection (a).
(B) Certification.--The requirements of
subparagraph (A) shall apply if the Director of
the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no
lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a
Bureau field office, certifies that the absence
of a prohibition of disclosure under this
subsection may result in--
(i) a danger to the national
security of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A financial institution
that receives a request under subsection (a),
or officer, employee, or agent thereof, may
disclose information otherwise subject to any
applicable nondisclosure requirement to--
(i) those persons to whom
disclosure is necessary in order to
comply with the request;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(iii) other persons as permitted by
the Director of the Federal Bureau of
Investigation or the designee of the
Director.
(B) Application.--A person to whom
disclosure is made under subparagraph (A) shall
be subject to the nondisclosure requirements
applicable to a person to whom a request is
issued under subsection (a) in the same manner
as the person to whom the request is issued.
(C) Notice.--Any recipient that discloses
to a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall inform the
person of the applicable nondisclosure
requirement.
(D) Identification of disclosure
recipients.--At the request of the Director of
the Federal Bureau of Investigation or the
designee of the Director, any person making or
intending to make a disclosure under clause (i)
or (iii) of subparagraph (A) shall identify to
the Director or such designee the person to
whom such disclosure will be made or to whom
such disclosure was made prior to the request.
(d) Judicial Review.--
(1) In general.--A request under subsection (a) or
a nondisclosure requirement imposed in connection with
such request under subsection (c) shall be subject to
judicial review under section 3511 of title 18, United
States Code.
(2) Notice.--A request under subsection (a) shall
include notice of the availability of judicial review
described in paragraph (1).
[(d)] (e) For purposes of this section, and sections 1115
and 1117 insofar as they relate to the operation of this
section, the term ``financial institution'' has the same
meaning as in subsections (a)(2) and (c)(1) of section 5312 of
title 31, United States Code, except that, for purposes of this
section, such term shall include only such a financial
institution any part of which is located inside any State or
territory of the United States, the District of Columbia,
Puerto Rico, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, or the United States Virgin Islands.
* * * * * * *
----------
FAIR CREDIT REPORTING ACT
* * * * * * *
TITLE VI--CONSUMER CREDIT REPORTING
* * * * * * *
Sec. 626. Disclosures to FBI for counterintelligence purposes
(a) Identity of Financial Institutions.--Notwithstanding
section 604 or any other provision of this title, a consumer
reporting agency shall furnish to the Federal Bureau of
Investigation the names and addresses of all financial
institutions (as that term is defined in section 1101 of the
Right to Financial Privacy Act of 1978) at which a consumer
maintains or has maintained an account, to the extent that
information is in the files of the agency, when presented with
a written request for [that information,] that information that
includes a term that specifically identifies a consumer or
account to be used as the basis for the production of that
information, signed by the Director of the Federal Bureau of
Investigation, or the Director's designee in a position not
lower than Deputy Assistant Director at Bureau headquarters or
a Special Agent in Charge of a Bureau field office designated
by the Director, which certifies compliance with this section.
The Director or the Director's designee may make such a
certification only if the Director or the Director's designee
has determined in writing, that such information is sought for
the conduct of an authorized investigation to protect against
international terrorism or clandestine intelligence activities,
provided that such an investigation of a United States person
is not conducted solely upon the basis of activities protected
by the first amendment to the Constitution of the United
States.
(b) Identifying Information.--Notwithstanding the
provisions of section 604 or any other provision of this title,
a consumer reporting agency shall furnish identifying
information respecting a consumer, limited to name, address,
former addresses, places of employment, or former places of
employment, to the Federal Bureau of Investigation when
presented with a [written request,] written request that
includes a term that specifically identifies a consumer or
account to be used as the basis for the production of that
information, signed by the Director or the Director's designee
in a position not lower than Deputy Assistant Director at
Bureau headquarters or a Special Agent in Charge of a Bureau
field office designated by the Director, which certifies
compliance with this subsection. The Director or the Director's
designee may make such a certification only if the Director or
the Director's designee has determined in writing that such
information is sought for the conduct of an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution of the United States.
(c) Court Order for Disclosure of Consumer Reports.--
Notwithstanding section 604 or any other provision of this
title, if requested in writing by the Director of the Federal
Bureau of Investigation, or a designee of the Director in a
position not lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge in a Bureau field
office designated by the Director, a court may issue an order
ex parte, which shall include a term that specifically
identifies a consumer or account to be used as the basis for
the production of the information, directing a consumer
reporting agency to furnish a consumer report to the Federal
Bureau of Investigation, upon a showing in camera that the
consumer report is sought for the conduct of an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution of the United States.
The terms of an order issued under this subsection shall not
disclose that the order is issued for purposes of a
counterintelligence investigation.
[(d) Confidentiality.--
[(1) If the Director of the Federal Bureau of
Investigation, or his designee in a position not lower
than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office
designated by the Director, certifies that otherwise
there may result a danger to the national security of
the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation,
interference with diplomatic relations, or danger to
the life or physical safety of any person, no consumer
reporting agency or officer, employee, or agent of a
consumer reporting agency shall disclose to any person
(other than those to whom such disclosure is necessary
to comply with the request or an attorney to obtain
legal advice or legal assistance with respect to the
request) that the Federal Bureau of Investigation has
sought or obtained the identity of financial
institutions or a consumer report respecting any
consumer under subsection (a), (b), or (c), and no
consumer reporting agency or officer, employee, or
agent of a consumer reporting agency shall include in
any consumer report any information that would indicate
that the Federal Bureau of Investigation has sought or
obtained such information on a consumer report.
[(2) The request shall notify the person or entity
to whom the request is directed of the nondisclosure
requirement under paragraph (1).
[(3) Any recipient disclosing to those persons
necessary to comply with the request or to an attorney
to obtain legal advice or legal assistance with respect
to the request shall inform such persons of any
applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be
subject to the same prohibitions on disclosure under
paragraph (1).
[(4) At the request of the Director of the Federal
Bureau of Investigation or the designee of the
Director, any person making or intending to make a
disclosure under this section shall identify to the
Director or such designee the person to whom such
disclosure will be made or to whom such disclosure was
made prior to the request, except that nothing in this
section shall require a person to inform the Director
or such designee of the identity of an attorney to whom
disclosure was made or will be made to obtain legal
advice or legal assistance with respect to the request
for the identity of financial institutions or a
consumer report respecting any consumer under this
section.]
(d) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is
issued under subparagraph (B) and notice of the
right to judicial review under subsection (e)
is provided, no consumer reporting agency that
receives a request under subsection (a) or (b)
or an order under subsection (c), or officer,
employee, or agent thereof, shall disclose or
specify in any consumer report, that the
Federal Bureau of Investigation has sought or
obtained access to information or records under
subsection (a), (b), or (c).
(B) Certification.--The requirements of
subparagraph (A) shall apply if the Director of
the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no
lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a
Bureau field office, certifies that the absence
of a prohibition of disclosure under this
subsection may result in--
(i) a danger to the national
security of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A consumer reporting
agency that receives a request under subsection
(a) or (b) or an order under subsection (c), or
officer, employee, or agent thereof, may
disclose information otherwise subject to any
applicable nondisclosure requirement to--
(i) those persons to whom
disclosure is necessary in order to
comply with the request;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(iii) other persons as permitted by
the Director of the Federal Bureau of
Investigation or the designee of the
Director.
(B) Application.--A person to whom
disclosure is made under subparagraph (A) shall
be subject to the nondisclosure requirements
applicable to a person to whom a request under
subsection (a) or (b) or an order under
subsection (c) is issued in the same manner as
the person to whom the request is issued.
(C) Notice.--Any recipient that discloses
to a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall inform the
person of the applicable nondisclosure
requirement.
(D) Identification of disclosure
recipients.--At the request of the Director of
the Federal Bureau of Investigation or the
designee of the Director, any person making or
intending to make a disclosure under clause (i)
or (iii) of subparagraph (A) shall identify to
the Director or such designee the person to
whom such disclosure will be made or to whom
such disclosure was made prior to the request.
(e) Judicial Review.--
(1) In general.--A request under subsection (a) or
(b) or an order under subsection (c) or a non-
disclosure requirement imposed in connection with such
request under subsection (d) shall be subject to
judicial review under section 3511 of title 18, United
States Code.
(2) Notice.--A request under subsection (a) or (b)
or an order under subsection (c) shall include notice
of the availability of judicial review described in
paragraph (1).
[(e)] (f) Payment of Fees.--The Federal Bureau of
Investigation shall, subject to the availability of
appropriations, pay to the consumer reporting agency assembling
or providing report or information in accordance with
procedures established under this section a fee for
reimbursement for such costs as are reasonably necessary and
which have been directly incurred in searching, reproducing, or
transporting books, papers, records, or other data required or
requested to be produced under this section.
[(f)] (g) Limit on Dissemination.--The Federal Bureau of
Investigation may not disseminate information obtained pursuant
to this section outside of the Federal Bureau of Investigation,
except to other Federal agencies as may be necessary for the
approval or conduct of a foreign counterintelligence
investigation, or, where the information concerns a person
subject to the Uniform Code of Military Justice, to appropriate
investigative authorities within the military department
concerned as may be necessary for the conduct of a joint
foreign counterintelligence investigation.
[(g)] (h) Rules of Construction.--Nothing in this section
shall be construed to prohibit information from being furnished
by the Federal Bureau of Investigation pursuant to a subpoena
or court order, in connection with a judicial or administrative
proceeding to enforce the provisions of this Act. Nothing in
this section shall be construed to authorize or permit the
withholding of information from the Congress.
[(h)] (i) Reports to Congress.--(1) On a semiannual basis,
the Attorney General shall fully inform the Permanent Select
Committee on Intelligence and the Committee on Banking, Finance
and Urban Affairs of the House of Representatives, and the
Select Committee on Intelligence and the Committee on Banking,
Housing, and Urban Affairs of the Senate concerning all
requests made pursuant to subsections (a), (b), and (c).
(2) In the case of the semiannual reports required to be
submitted under paragraph (1) to the Permanent Select Committee
on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, the submittal dates
for such reports shall be as provided in section 507 of the
National Security Act of 1947.
[(i)] (j) Damages.--Any agency or department of the United
States obtaining or disclosing any consumer reports, records,
or information contained therein in violation of this section
is liable to the consumer to whom such consumer reports,
records, or information relate in an amount equal to the sum
of--
(1) $100, without regard to the volume of consumer
reports, records, or information involved;
(2) any actual damages sustained by the consumer as
a result of the disclosure;
(3) if the violation is found to have been willful
or intentional, such punitive damages as a court may
allow; and
(4) in the case of any successful action to enforce
liability under this subsection, the costs of the
action, together with reasonable attorney fees, as
determined by the court.
[(j)] (k) Disciplinary Actions for Violations.--If a court
determines that any agency or department of the United States
has violated any provision of this section and the court finds
that the circumstances surrounding the violation raise
questions of whether or not an officer or employee of the
agency or department acted willfully or intentionally with
respect to the violation, the agency or department shall
promptly initiate a proceeding to determine whether or not
disciplinary action is warranted against the officer or
employee who was responsible for the violation.
[(k)] (l) Good-Faith Exception.--Notwithstanding any other
provision of this title, any consumer reporting agency or agent
or employee thereof making disclosure of consumer reports or
identifying information pursuant to this subsection in good-
faith reliance upon a certification of the Federal Bureau of
Investigation pursuant to provisions of this section shall not
be liable to any person for such disclosure under this title,
the constitution of any State, or any law or regulation of any
State or any political subdivision of any State.
[(l)] (m) Limitation of Remedies.--Notwithstanding any
other provision of this title, the remedies and sanctions set
forth in this section shall be the only judicial remedies and
sanctions for violation of this section.
[(m)] (n) Injunctive Relief.--In addition to any other
remedy contained in this section, injunctive relief shall be
available to require compliance with the procedures of this
section. In the event of any successful action under this
subsection, costs together with reasonable attorney fees, as
determined by the court, may be recovered.
Sec. 627. Disclosures to governmental agencies for counterterrorism
purposes
(a) Disclosure.--Notwithstanding section 604 or any other
provision of this title, a consumer reporting agency shall
furnish a consumer report of a consumer and all other
information in a consumer's file to a government agency
authorized to conduct investigations of, or intelligence or
counterintelligence activities or analysis related to,
international terrorism when presented with a written
certification by such government agency that such information
is necessary for the agency's conduct or such investigation,
activity or [analysis.] analysis and that includes a term that
specifically identifies a consumer or account to be used as the
basis for the production of such information.
(b) Form of Certification.--The certification described in
subsection (a) shall be signed by a supervisory official
designated by the head of a Federal agency or an officer of a
Federal agency whose appointment to office is required to be
made by the President, by and with the advice and consent of
the Senate.
[(c) Confidentiality.--
[(1) If the head of a government agency authorized
to conduct investigations of intelligence or
counterintelligence activities or analysis related to
international terrorism, or his designee, certifies
that otherwise there may result a danger to the
national security of the United States, interference
with a criminal, counterterrorism, or
counterintelligence investigation, interference with
diplomatic relations, or danger to the life or physical
safety of any person, no consumer reporting agency or
officer, employee, or agent of such consumer reporting
agency, shall disclose to any person (other than those
to whom such disclosure is necessary to comply with the
request or an attorney to obtain legal advice or legal
assistance with respect to the request), or specify in
any consumer report, that a government agency has
sought or obtained access to information under
subsection (a).
[(2) The request shall notify the person or entity
to whom the request is directed of the nondisclosure
requirement under paragraph (1).
[(3) Any recipient disclosing to those persons
necessary to comply with the request or to any attorney
to obtain legal advice or legal assistance with respect
to the request shall inform such persons of any
applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be
subject to the same prohibitions on disclosure under
paragraph (1).
[(4) At the request of the authorized government
agency, any person making or intending to make a
disclosure under this section shall identify to the
requesting official of the authorized government agency
the person to whom such disclosure will be made or to
whom such disclosure was made prior to the request,
except that nothing in this section shall require a
person to inform the requesting official of the
identity of an attorney to whom disclosure was made or
will be made to obtain legal advice or legal assistance
with respect to the request for information under
subsection (a).]
(c) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is
issued under subparagraph (B) and notice of the
right to judicial review under subsection (d)
is provided, no consumer reporting agency that
receives a request under subsection (a), or
officer, employee, or agent thereof, shall
disclose or specify in any consumer report,
that a government agency described in
subsection (a) has sought or obtained access to
information or records under subsection (a).
(B) Certification.--The requirements of
subparagraph (A) shall apply if the head of the
government agency described in subsection (a),
or a designee, certifies that the absence of a
prohibition of disclosure under this subsection
may result in--
(i) a danger to the national
security of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A consumer reporting
agency that receives a request under subsection
(a), or officer, employee, or agent thereof,
may disclose information otherwise subject to
any applicable nondisclosure requirement to--
(i) those persons to whom
disclosure is necessary in order to
comply with the request;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(iii) other persons as permitted by
the head of the government agency
described in subsection (a) or a
designee.
(B) Application.--A person to whom
disclosure is made under subparagraph (A) shall
be subject to the nondisclosure requirements
applicable to a person to whom a request under
subsection (a) is issued in the same manner as
the person to whom the request is issued.
(C) Notice.--Any recipient that discloses
to a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall inform the
person of the applicable nondisclosure
requirement.
(D) Identification of disclosure
recipients.--At the request of the head of the
government agency described in subsection (a)
or a designee, any person making or intending
to make a disclosure under clause (i) or (iii)
of subparagraph (A) shall identify to the head
or such designee the person to whom such
disclosure will be made or to whom such
disclosure was made prior to the request.
(d) Judicial Review.--
(1) In general.--A request under subsection (a) or
a non-disclosure requirement imposed in connection with
such request under subsection (c) shall be subject to
judicial review under section 3511 of title 18, United
States Code.
(2) Notice.--A request under subsection (a) shall
include notice of the availability of judicial review
described in paragraph (1).
[(d)] (e) Rule of Construction.--Nothing in section 626
shall be construed to limit the authority of the Director of
the Federal Bureau of Investigation under this section.
[(e)] (f) Safe Harbor.--Notwithstanding any other provision
of this title, any consumer reporting agency or agent or
employee thereof making disclosure of consumer reports or other
information pursuant to this section in good-faith reliance
upon a certification of a government agency pursuant to the
provisions of this section shall not be liable to any person
for such disclosure under this subchapter, the constitution of
any State, or any law or regulation of any State or any
political subdivision of any State.
[(f)] (g) Reports to Congress.--(1) On a semi-annual basis,
the Attorney General shall fully inform the Committee on the
Judiciary, the Committee on Financial Services, and the
Permanent Select Committee on Intelligence of the House of
Representatives and the Committee on the Judiciary, the
Committee on Banking, Housing, and Urban Affairs, and the
Select Committee on Intelligence of the Senate concerning all
requests made pursuant to subsection (a).
(2) In the case of the semiannual reports required to be
submitted under paragraph (1) to the Permanent Select Committee
on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, the submittal dates
for such reports shall be as provided in section 507 of the
National Security Act of 1947 (50 U.S.C. 415b).
* * * * * * *
----------
NATIONAL SECURITY ACT OF 1947
* * * * * * *
TITLE VIII--ACCESS TO CLASSIFIED INFORMATION
* * * * * * *
requests by authorized investigative agencies
Sec. 802. (a)(1) Any authorized investigative agency may
request from any financial agency, financial institution, or
holding company, or from any consumer reporting agency, such
financial records, other financial information, and consumer
reports as may be necessary in order to conduct any authorized
law enforcement investigation, counterintelligence inquiry, or
security determination. Any authorized investigative agency may
also request records maintained by any commercial entity within
the United States pertaining to travel by an employee in the
executive branch of Government outside the United States.
(2) Requests may be made under this section where--
(A) the records sought pertain to a person who is
or was an employee in the executive branch of
Government required by the President in an Executive
order or regulation, as a condition of access to
classified information, to provide consent, during a
background investigation and for such time as access to
the information is maintained, and for a period of not
more than three years thereafter, permitting access to
financial records, other financial information,
consumer reports, and travel records; and
(B)(i) there are reasonable grounds to believe,
based on credible information, that the person is, or
may be, disclosing classified information in an
unauthorized manner to a foreign power or agent of a
foreign power;
(ii) information the employing agency deems
credible indicates the person has incurred excessive
indebtedness or has acquired a level of affluence which
cannot be explained by other information known to the
agency; or
(iii) circumstances indicate the person had the
capability and opportunity to disclose classified
information which is known to have been lost or
compromised to a foreign power or an agent of a foreign
power.
(3) Each such request--
(A) shall be accompanied by a written certification
signed by the department or agency head or deputy
department or agency head concerned, or by a senior
official designated for this purpose by the department
or agency head concerned (whose rank shall be no lower
than Assistant Secretary or Assistant Director), and
shall certify that--
(i) the person concerned is or was an
employee within the meaning of paragraph
(2)(A);
(ii) the request is being made pursuant to
an authorized inquiry or investigation and is
authorized under this section; and
(iii) the records or information to be
reviewed are records or information which the
employee has previously agreed to make
available to the authorized investigative
agency for review;
(B) shall contain a copy of the agreement referred
to in subparagraph (A)(iii);
(C) shall identify specifically or by category the
records or information to be reviewed; and
(D) shall inform the recipient of the request of
the prohibition described in subsection (b).
[(b) Prohibition of Certain Disclosure.--
[(1) If an authorized investigative agency
described in subsection (a) certifies that otherwise
there may result a danger to the national security of
the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation,
interference with diplomatic relations, or danger to
the life or physical safety of any person, no
governmental or private entity, or officer, employee,
or agent of such entity, may disclose to any person
(other than those to whom such disclosure is necessary
to comply with the request or an attorney to obtain
legal advice or legal assistance with respect to the
request) that such entity has received or satisfied a
request made by an authorized investigative agency
under this section.
[(2) The request shall notify the person or entity
to whom the request is directed of the nondisclosure
requirement under paragraph (1).
[(3) Any recipient disclosing to those persons
necessary to comply with the request or to an attorney
to obtain legal advice or legal assistance with respect
to the request shall inform such persons of any
applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be
subject to the same prohibitions on disclosure under
paragraph (1).
[(4) At the request of the authorized investigative
agency, any person making or intending to make a
disclosure under this section shall identify to the
requesting official of the authorized investigative
agency the person to whom such disclosure will be made
or to whom such disclosure was made prior to the
request, except that nothing in this section shall
require a person to inform the requesting official of
the identity of an attorney to whom disclosure was made
or will be made to obtain legal advice or legal
assistance with respect to the request under subsection
(a).]
(b) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is
issued under subparagraph (B) and notice of the
right to judicial review under subsection (c)
is provided, no governmental or private entity
that receives a request under subsection (a),
or officer, employee, or agent thereof, shall
disclose to any person that an authorized
investigative agency described in subsection
(a) has sought or obtained access to
information under subsection (a).
(B) Certification.--The requirements of
subparagraph (A) shall apply if the head of an
authorized investigative agency described in
subsection (a), or a designee, certifies that
the absence of a prohibition of disclosure
under this subsection may result in--
(i) a danger to the national
security of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A governmental or private
entity that receives a request under subsection
(a), or officer, employee, or agent thereof,
may disclose information otherwise subject to
any applicable nondisclosure requirement to--
(i) those persons to whom
disclosure is necessary in order to
comply with the request;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(iii) other persons as permitted by
the head of the authorized
investigative agency described in
subsection (a) or a designee.
(B) Application.--A person to whom
disclosure is made under subparagraph (A) shall
be subject to the nondisclosure requirements
applicable to a person to whom a request is
issued under subsection (a) in the same manner
as the person to whom the request is issued.
(C) Notice.--Any recipient that discloses
to a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall inform the
person of the applicable nondisclosure
requirement.
(D) Identification of disclosure
recipients.--At the request of the head of an
authorized investigative agency described in
subsection (a), or a designee, any person
making or intending to make a disclosure under
clause (i) or (iii) of subparagraph (A) shall
identify to the head of the authorized
investigative agency or such designee the
person to whom such disclosure will be made or
to whom such disclosure was made prior to the
request.
(c) Judicial Review.--
(1) In general.--A request under subsection (a) or
a nondisclosure requirement imposed in connection with
such request under subsection (b) shall be subject to
judicial review under section 3511 of title 18, United
States Code.
(2) Notice.--A request under subsection (a) shall
include notice of the availability of judicial review
described in paragraph (1).
[(c)] (d)(1) Notwithstanding any other provision of law
(other than section 6103 of the Internal Revenue Code of 1986),
an entity receiving a request for records or information under
subsection (a) shall, if the request satisfies the requirements
of this section, make available such records or information
within 30 days for inspection or copying, as may be
appropriate, by the agency requesting such records or
information.
(2) Any entity (including any officer, employee, or agent
thereof) that discloses records or information for inspection
or copying pursuant to this section in good faith reliance upon
the certifications made by an agency pursuant to this section
shall not be liable for any such disclosure to any person under
this title, the constitution of any State, or any law or
regulation of any State or any political subdivision of any
State.
[(d)] (e) Any agency requesting records or information
under this section may, subject to the availability of
appropriations, reimburse a private entity for any cost
reasonably incurred by such entity in responding to such
request, including the cost of identifying, reproducing, or
transporting records or other data.
[(e)] (f) An agency receiving records or information
pursuant to a request under this section may disseminate the
records or information obtained pursuant to such request
outside the agency only--
(1) to the agency employing the employee who is the
subject of the records or information;
(2) to the Department of Justice for law
enforcement or counterintelligence purposes; or
(3) with respect to dissemination to an agency of
the United States, if such information is clearly
relevant to the authorized responsibilities of such
agency.
[(f)] (g) Nothing in this section may be construed to
affect the authority of an investigative agency to obtain
information pursuant to the Right to Financial Privacy Act (12
U.S.C. 3401 et seq.) or the Fair Credit Reporting Act (15
U.S.C. 1681 et seq.).
* * * * * * *
----------
INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
* * * * * * *
TITLE VI--TERRORISM PREVENTION
Subtitle A--Individual Terrorists as Agents of Foreign Powers
SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.
(a) In General.--Section 101(b)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) is
amended by adding at the end the following new subparagraph:
``(C) engages in international terrorism or
activities in preparation therefore; or''.
(b) Sunset.--
(1) In general.--Except as provided in paragraph
(2), the amendment made by subsection (a) shall cease
to have effect on [June 1, 2015] December 15, 2019.
(2) Exception.--With respect to any particular
foreign intelligence investigation that began before
the date on which the provisions referred to in
paragraph (1) cease to have effect, or with respect to
any particular offense or potential offense that began
or occurred before the date on which the provisions
cease to have effect, such provisions shall continue in
effect.
* * * * * * *
Committee Jurisdiction Letters
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]
