Sec. 5. Foreign Intelligence Surveillance Court reform
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Section 103(a)(1) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(a)(1) ) is amended by adding at the end the following: To the extent practicable, no judge designated under this subsection shall hear a renewal application for electronic surveillance under this Act, which application was previously granted by another judge designated under this subsection, unless the term of the judge who granted the application has expired, or that judge is otherwise no longer serving on the court. . Section 103(i)(2) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(i)(2) ) is amended— by striking subparagraph
(A)and inserting the following: shall, unless the court issues a finding that appointment is not appropriate, appoint 1 or more individuals who have been designated under paragraph (1), not fewer than 1 of whom possesses privacy and civil liberties expertise, unless the court finds that such a qualification is inappropriate, to serve as amicus curiae to assist the court in the consideration of any application or motion for an order or review that, in the opinion of the court— presents a novel or significant interpretation of the law; presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution of the United States; presents or involves a sensitive investigative matter; presents a request for approval of a new program, a new technology, or a new use of existing technology; presents a request for reauthorization of programmatic surveillance; otherwise presents novel or significant civil liberties issues; or otherwise involves the activities of a United States person; and ; and in subparagraph (B), by striking an individual or organization each place the term appears and inserting 1 or more individuals or organizations . Section 103(i) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(i) ) is amended by adding at the end the following: In this subsection, the term sensitive investigative matter means— an investigative matter involving the activities of— a domestic public official or political candidate, or an individual serving on the staff of such an official or candidate; a domestic religious or political organization, or a known or suspected United States person prominent in such an organization; or the domestic news media; or any other investigative matter involving a domestic entity or a known or suspected United States person that, in the judgment of the applicable court established under subsection
(a)or (b), is as sensitive as an investigative matter described in subparagraph (A). . Section 103(i) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(i) ), as amended by subsection
(a)of this section, is amended— in paragraph (4)— in the paragraph heading, by inserting after ; authority ; Duties by redesignating subparagraphs (A), (B), and
(C)as clauses (i), (ii), and (iii), respectively, and adjusting the margins accordingly; in the matter preceding clause (i), as so redesignated, by striking the amicus curiae shall and inserting the following: the amicus curiae— shall ; in subparagraph (A)(i), as so redesignated, by inserting before the semicolon at the end the following: , including legal arguments regarding any privacy or civil liberties interest of any United States person that would be significantly impacted by the application or motion ; and by striking the period at the end and inserting the following: ; and may seek leave to raise any novel or significant privacy or civil liberties issue relevant to the application or motion or other issue directly impacting the legality of the proposed electronic surveillance with the court, regardless of whether the court has requested assistance on that issue. ; by redesignating paragraphs
(7)through
(12)as paragraphs
(8)through (13), respectively; and by inserting after paragraph
(6)the following: Following issuance of an order under this Act by the Foreign Intelligence Surveillance Court, an amicus curiae appointed under paragraph
(2)may petition the Foreign Intelligence Surveillance Court to certify for review to the Foreign Intelligence Surveillance Court of Review a question of law pursuant to subsection (j). If the Foreign Intelligence Surveillance Court denies a petition under this subparagraph, the Foreign Intelligence Surveillance Court shall provide for the record a written statement of the reasons for the denial. Upon certification of any question of law pursuant to this subparagraph, the Court of Review shall appoint the amicus curiae to assist the Court of Review in its consideration of the certified question, unless the Court of Review issues a finding that such appointment is not appropriate. An amicus curiae appointed under paragraph
(2)may petition the Foreign Intelligence Surveillance Court of Review to certify for review to the Supreme Court of the United States any question of law pursuant to section 1254(2) of title 28, United States Code. For purposes of section 602, a petition filed under subparagraph
(A)or
(B)of this paragraph and all of its content shall be considered a decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review described in paragraph
(2)of section 602(a). . Section 103(i)(6) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(i)(6) ) is amended by striking subparagraph
(A)and inserting the following: If a court established under subsection
(a)or
(b)appoints an amicus curiae under paragraph (2), the amicus curiae— shall have access, to the extent such information is available to the Government, to— the application, certification, petition, motion, and other information and supporting materials, including any information described in section 901, submitted to the Foreign Intelligence Surveillance Court in connection with the matter in which the amicus curiae has been appointed, including access to any relevant legal precedent (including any such precedent that is cited by the Government, including in such an application); an unredacted copy of each relevant decision made by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review in which the court decides a question of law, without regard to whether the decision is classified; and any other information or materials that the court determines are relevant to the duties of the amicus curiae; and may make a submission to the court requesting access to any other particular materials or information (or category of materials or information) that the amicus curiae believes to be relevant to the duties of the amicus curiae. The Foreign Intelligence Surveillance Court, upon the motion of an amicus curiae appointed under paragraph
(2)or upon its own motion, may require the Government to make available the supporting documentation described in section 902. . Section 103(i)(6) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(i)(6) ) is amended— in subparagraph (B), by striking may and inserting shall ; and by striking subparagraph
(C)and inserting the following: An amicus curiae designated or appointed by the court shall have access, to the extent such information is available to the Government, to unredacted copies of each opinion, order, transcript, pleading, or other document of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review, including, if the individual is eligible for access to classified information, any classified documents, information, and other materials or proceedings. . The amendments made by this section shall take effect on the date of enactment of this Act and shall apply with respect to proceedings under the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 et seq. ) that take place on or after, or are pending on, that date.
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