Sec. 11. Procedures for targeted acquisitions of terrorist and foreign agent non-content communications records
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Title V of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861 et seq. ) is amended by adding at the end the following new section: 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 acquisition from an electronic communication service provider of records created as a result of communications of an individual or facility who, based on reasonable and articulable suspicion, is— a foreign power or the agent of a foreign power; associated with a foreign power or the agent of a foreign power; or in contact with, or known to, a suspected agent of a foreign power.
An acquisition authorized under subsection
(a)shall be reasonably designed— not to acquire— the contents associated with any communication; records of wire or electronic communications without the use of specific identifiers or selection terms; information for an investigation of a United States person conducted solely upon the basis of activities protected by the first amendment to the Constitution; or the name, address, social security number, employer or taxpayer identification number, date of birth, or credit card number of any United States person; and to comply with the fourth amendment to the Constitution of the United States. An acquisition authorized under subsection
(a)shall be conducted only— in accordance with the selection and civil liberties and privacy protection procedures adopted in accordance with subsections
(d)and (e); and upon submission of a certification in accordance with subsection (g). 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. The Attorney General and the Director of National Intelligence may make the determination under paragraph (2)— before the submission of a certification in accordance with subsection (g); or 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. The Attorney General, in consultation with the Director of National Intelligence, shall adopt selection procedures that are reasonably designed to ensure that any acquisition authorized under subsection
(a)complies with the requirements and limitations relating to such acquisitions under subsections
(a)and (b); The procedures adopted in accordance with paragraph
(1)shall be subject to judicial review pursuant to subsection (i). The Attorney General, in consultation with the Director of National Intelligence, shall adopt civil liberties and privacy protection procedures that are reasonably designed to— minimize the impact of any acquisition authorized by
(a)on the privacy and civil liberties of United States persons; and reasonably limit the receipt, retention, use, and disclosure of communications records associated with a specific person when such records are not necessary to understand foreign intelligence information or assess the importance of such information. The civil liberties and privacy protection procedures adopted in accordance with paragraph
(1)shall be subject to judicial review pursuant to subsection (i). The Attorney General, in consultation with the Director of National Intelligence, shall adopt guidelines to ensure— compliance with the requirements and limitations under subsections
(a)and (b); and that an application for a court order is filed as required by this title. The Attorney General shall provide the guidelines adopted in accordance with paragraph (1)— the congressional intelligence committees; the Committees on the Judiciary of the Senate and the House of Representatives; and the Foreign Intelligence Surveillance Court. 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. 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. A certification made under this subsection shall— attest that— procedures 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 ensure compliance with the requirements and limitations under subsections
(a)and (b); the civil liberties and privacy protection procedures to be used with respect to such acquisition— meet the requirements of civil liberties and privacy protection procedures adopted under subsection (e); and have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court; 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 chapter; 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; a significant purpose of the acquisition is to obtain foreign intelligence information; the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communications service provider; and the acquisition complies with the limitations in subsection (b); include the procedures adopted in accordance with subsections
(d)and (e); be supported, as appropriate, by the affidavit of any appropriate official in the area of national security who is— appointed by the President, by and with the advice and consent of the Senate; or the head of an element of the intelligence community; include— an effective date for the authorization that is at least 30 days after the submission of the written certification to the court; or 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 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. 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). The Attorney General or a designee of the Attorney General shall maintain a copy of a certification made under this subsection. A certification submitted in accordance with this subsection shall be subject to judicial review pursuant to subsection (i). With respect to an acquisition authorized under subsection (a), the Attorney General and the Director of National Intelligence may direct, in writing, an electronic communications service provider to— immediately provide the Government with records, whether existing or created in the future, in the format specified by the Government and in a manner that will protect the secrecy of the acquisition; and maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the aid furnished that such electronic communication service provider retains. The Government shall compensate, at the prevailing rate, an electronic communications service provider for providing records in accordance with directives issued pursuant to paragraph (1). The Government may provide any information, facilities, or assistance necessary to aid an electronic communications service provider in complying with a directive issued pursuant to paragraph (1). For any directive issued under paragraph (1), the Attorney General shall retain a record of the information indicating that, at the time the directive was issued, the directive complied with the selection procedures established by subsection (d). The Attorney General shall promptly provide to the court established by section 103(a) a copy of each directive issued under paragraph
(1)and a copy of each record prepared under paragraph (3). The court shall promptly consider each directive and record provided under subparagraph (A), and if the court finds that a record prepared under paragraph
(3)does not meet the requirements of the selection procedures established by subsection (d), the court may order that the production of records under the applicable directive be terminated or modified, that the information produced in response to the directive be destroyed, or another appropriate remedy. An electronic communications 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. 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. 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. 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 consists of claims, defenses, or other legal contentions that are not warranted by existing law or consists of a frivolous 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. 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. Any directive not explicitly modified or set aside under this paragraph shall remain in full effect. Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court. If an electronic communications 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 service to comply with the directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition. 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. 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 communications 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. Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court. Any process under this paragraph may be served in any judicial district in which the electronic communications service provider may be found. The Government or an electronic communications 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. The Government or an electronic communications 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. Nothing in this subsection shall be construed to prevent a directive issued under paragraph
(1)from requiring an electronic communications service provider to produce additional records, whether existing or created in the future, based on records produced by a previous directive issued under paragraph (1). The Foreign Intelligence Surveillance Court shall have jurisdiction to review a certification submitted in accordance with subsection
(g)and the selection and civil liberties and privacy protection procedures adopted in accordance with subsections
(d)and (e), and amendments to such certification or such procedures. The Court shall review a certification submitted in accordance with subsection
(g)and the selection and civil liberties and privacy protection 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. The Attorney General and the Director of National Intelligence may amend a certification submitted in accordance with subsection
(g)or the selection and civil liberties and privacy protection 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. The Court shall review the following: A certification submitted in accordance with subsection
(g)to determine whether the certification contains all the required elements. The selection procedures adopted in accordance with subsection
(d)to assess whether the procedures are reasonably designed to meet the requirements of subsection (d). The civil liberties and privacy protection procedures adopted in accordance with subsection
(e)to assess whether such procedures meet the requirements of subsection (e). If the Court finds that a certification submitted in accordance with subsection
(g)contains all the required elements and that the selection and civil liberties and privacy protection 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. 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— 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 cease, or not begin, the implementation of the authorization for which such certification was submitted. 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. 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. Any acquisition affected by an order under paragraph (3)(B) may continue— during the pendency of any rehearing of the order by the Court en banc; and 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). 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. 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. 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. 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. Judicial proceedings under this section shall be conducted as expeditiously as possible. 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. 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. 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. 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. Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the selection and civil liberties and privacy protection procedures adopted in accordance with subsections
(d)and
(e)and the guidelines adopted in accordance with subsection (f). The assessment shall also include the aggregate number of directives issued under subsection
(h)during the relevant time period. The Attorney General and Director of National Intelligence shall submit each assessment to— the Foreign Intelligence Surveillance Court; and 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— the congressional intelligence committees; and the Committees on the Judiciary of the House of Representatives and the Senate. The Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire communications records under subsection (a), with respect to the department or element of such Inspector General— are authorized to review compliance with the selection and civil liberties and privacy protection procedures adopted in accordance with subsections
(d)and
(e)and the guidelines adopted in accordance with subsection (f); shall provide each such review to— the Attorney General; the Director of National Intelligence; and 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— the congressional intelligence committees; and the Committees on the Judiciary of the House of Representatives and the Senate. In this section: The terms contents , wire communication , and electronic communication have the meaning given such terms in section 2510 of title 18, United States Code. The term electronic communication service provider has the meaning given such term in section 701. The terms foreign power and agent of a foreign power have the meanings given such terms in section 101. . The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 note) is amended by inserting after the item relating to section 502 the following new item: Sec. 503. Procedures for targeted acquisitions of terrorist and foreign agent non-content communications records. . Section 802(a)(3) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1885a ) is amended by striking or 702(h) and inserting 503(h), or 702(h) .
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Sec. 11
Procedures for targeted acquisitions of terrorist and foreign agent non-content communications records
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