Sec. 203. Enhanced authorities for amicus curiae
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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 appoint 1 or more individuals who have been designated under paragraph (1), not less 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, unless the court issues a finding that such appointment is not appropriate; presents exceptional 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, unless the court issues a finding that such appointment is not appropriate; targets a United States person and presents or involves a sensitive investigative matter, unless— the matter represents an immediate danger to human life; and the court issues a finding that such appointment is not appropriate; targets a United States person and presents a request for approval of a new programmatic surveillance or reauthorization of it, unless the court issues a finding that such appointment is not appropriate; or targets a United States person and otherwise presents novel or exceptional civil liberties issues, unless the court issues a finding that such appointment is not appropriate; and ; and in subparagraph (B), by striking an individual or organization each place the term appears and inserting one or more individuals or organizations . Subsection
(i)of section 103 of such Act ( 50 U.S.C. 1803 ) is amended by adding at the end the following: In this subsection, the term sensitive investigative matter means— an investigative matter that targets a United States person who is— a United States elected official; an appointee of the President or a State Governor; a United States political candidate; a United States political organization or an individual prominent in such organization; a United States news media or member of a United States news media; or a United States religious organization or an individual prominent in such organization; or any other investigative matter involving a domestic entity or a known or presumed 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). . Subsection
(i)of such section ( 50 U.S.C. 1803 ), 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 designated, by striking the amicus curiae shall and inserting the following: the amicus curiae— shall ; in subparagraph (A)(i), as so designated, 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 a final order under this Act by the Foreign Intelligence Surveillance Court in a matter in which an amicus curiae was appointed under paragraph (2), that amicus curiae 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 court denies such petition, the court shall provide for the record a written statement of the reasons for such 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, in the matter in which that amicus curiae was appointed. For purposes of section 602, if the Foreign Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of Review denies a petition filed under subparagraph
(A)or
(B)of this paragraph, that petition 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). . Subparagraph
(A)of section 103(i)(6) of such Act ( 50 U.S.C. 1803(i)(6) ) is amended to read as follows: If a court established under subsection
(a)or
(b)appoints an amicus curiae under paragraph (2), the amicus curiae— shall have access to, to the extent such information is available to the Government and the court established under subsection
(a)or
(b)determines it is necessary to fulfill the duties of the amicus curiae— the application, certification, petition, motion, and other information and supporting materials 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); a 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 if the court determines the information is relevant to the duties of the amicus curiae. . Such section is further amended by striking subparagraph
(C)and inserting the following: An amicus curiae appointed by the court shall have access, to the extent such information is available to the Government and the court determines such information is relevant to the duties of the amicus curiae in the matter in which the amicus curiae was appointed, to 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, but only to the extent consistent with the national security of the United States. . Such section is further amended— by redesignating subparagraphs (B), (C), and
(D)as subparagraphs (C), (D), and (E), respectively; and by inserting after subparagraph
(A)the following new subparagraph: If the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review determines that it is relevant to the duties of an amicus curiae appointed by the court under paragraph (2), the amicus curiae may consult with 1 or more of the other individuals designated by the court to serve as amicus curiae pursuant to paragraph
(1)regarding any of the information relevant to any assigned proceeding. . Paragraph
(1)of section 103(i) of such Act ( 50 U.S.C. 1803(i) ) is amended by adding at the end the following new sentence: An individual may serve as an amicus curiae for a 5-year term, and the presiding judges may, for good cause, jointly reappoint the individual to a single additional term. . The amendment made by paragraph
(1)shall apply with respect to the service of an amicus curiae appointed under section 103(i) of such Act ( 50 U.S.C. 1803(i) ) that occurs on or after the date of the enactment of this Act, regardless of the date on which the amicus curiae is appointed.
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Sec. 203
Enhanced authorities for amicus curiae
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