Sec. 101. Query procedure reform
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The Department of Justice shall conduct an audit of a significant representative sample of covered queries, as defined in paragraph
(6)of section 702(f) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a(f) ), as redesignated and amended by subsection
(b)of this section, conducted during the 180-day period beginning on the date of enactment of this Act, and during each 180-day period thereafter. Not later than 90 days after the end of each 180-day period described in paragraph (1), the Department of Justice shall complete the audit described in such paragraph with respect to such 180-day period. Section 702(f) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a(f) ) is amended— by redesignating paragraph
(3)as paragraph (6); by inserting before paragraph
(6)the following: For any procedures adopted under paragraph
(1)applicable to the Federal Bureau of Investigation, the Attorney General, in consultation with the Director of National Intelligence, shall include the following requirements: A requirement that, prior to conducting any query, and on an annual basis thereafter as a prerequisite for continuing to conduct queries, personnel of the Federal Bureau of Investigation successfully complete training on the querying procedures. A requirement that, absent exigent circumstances, prior to conducting certain queries, personnel of the Federal Bureau of Investigation receive approval, at minimum, as follows: Approval from the Deputy Director of the Federal Bureau of Investigation if the query uses a query term reasonably believed to identify a United States elected official, an appointee of the President or the governor of a State, a United States political candidate, a United States political organization or a United States person prominent in such organization, or a United States media organization or a United States person who is a member of such organization. Approval from an attorney of the Federal Bureau of Investigation if the query uses a query term reasonably believed to identify a United States religious organization or a United States person who is prominent in such organization. Approval from an attorney of the Federal Bureau of Investigation for 2 or more queries conducted together as a batch job. A requirement that— prior to conducting a covered query, personnel of the Federal Bureau of Investigation generate a written statement of the specific factual basis to support the reasonable belief that such query meets the standards required by the procedures adopted under paragraph (1); and for each covered query, the Federal Bureau of Investigation shall keep a record of the query term, the date of the conduct of the query, the identifier of the personnel conducting the query, and such written statement. Any system of the Federal Bureau of Investigation that stores unminimized contents or noncontents obtained through acquisitions authorized under subsection
(a)together with contents or noncontents obtained through other lawful means shall be configured in a manner that— requires personnel of the Federal Bureau of Investigation to affirmatively elect to include such unminimized contents or noncontents obtained through acquisitions authorized under subsection
(a)when running a query; or includes other controls reasonably expected to prevent inadvertent queries of such unminimized contents or noncontents. ; and in paragraph (6), as so redesignated— by redesignating subparagraph
(B)as subparagraph (C); and by inserting after subparagraph
(A)the following: The term covered query means a query conducted— using a term associated with a United States person or a person reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information; or for the purpose of finding the information of a United States person or a person reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information. . Section 702(f) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a(f) ) is amended— in paragraph (1)(A) by inserting and the limitations and requirements in paragraph
(2)after Constitution of the United States ; by striking paragraph
(2)and inserting the following: Except as provided in subparagraphs
(B)and (C), no officer or employee of the United States may access communications content, or information the compelled disclosure of which would require a probable cause warrant if sought for law enforcement purposes inside the United States, acquired under subsection
(a)and returned in response to a covered query. Subparagraph
(A)shall not apply if— the person to whom the query relates is the subject of an order or emergency authorization authorizing electronic surveillance, a physical search, or an acquisition under this section or section 105, section 304, section 703, or section 704 of this Act or a warrant issued pursuant to the Federal Rules of Criminal Procedure by a court of competent jurisdiction; the officer or employee accessing the communications content or information has a reasonable belief that— an emergency exists involving an imminent threat of death or serious bodily harm; and in order to prevent or mitigate the threat described in subitem (AA), the communications content or information must be accessed before authorization described in subclause
(I)can, with due diligence, be obtained; and not later than 14 days after the communications content or information is accessed, a description of the circumstances justifying the accessing of the query results is provided to the Foreign Intelligence Surveillance Court, the congressional intelligence committees, the Committee on the Judiciary of the House of Representatives, and the Committee on the Judiciary of the Senate; such person or, if such person is incapable of providing consent, a third party legally authorized to consent on behalf of such person, has provided consent for the access on a case-by-case basis; or the communications content or information is accessed and used for the sole purpose of identifying targeted recipients of malicious software and preventing or mitigating harm from such malicious software; other than malicious software and cybersecurity threat signatures, no communications content or other information are accessed or reviewed; and the accessing of query results is reported to the Foreign Intelligence Surveillance Court. No communications content or information accessed under clause (i)(II) or information derived from such access may be used, received in evidence, or otherwise disseminated 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, except in a proceeding that arises from the threat that prompted the query. Not less frequently than annually, the Attorney General shall assess compliance with the requirements under subclause (I). In the event that communications content or information returned in response to a covered query are accessed pursuant to an emergency authorization described in subparagraph (B)(i)(I) and the subsequent application to authorize electronic surveillance, a physical search, or an acquisition pursuant to section 105(e), section 304(e), section 703(d), or section 704(d) of this Act is denied, or in any other case in which communications content or information returned in response to a covered query are accessed in violation of this paragraph— no communications content or information acquired or evidence derived from such access may be used, received in evidence, or otherwise disseminated in any investigation by or 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 communications content or information acquired or derived from such access may subsequently be used or disclosed in any other manner without the consent of the person to whom the covered query relates, except in the case that the Attorney General approves the use or disclosure of such information in order to prevent the death of or serious bodily harm to any person. Not less frequently than annually, the Attorney General shall assess compliance with the requirements under clause (i). Except as provided in clause
(ii)of this subparagraph, no officer or employee of the United States may conduct a covered query of information acquired under subsection
(a)unless the query is reasonably likely to retrieve foreign intelligence information. An officer or employee of the United States may conduct a covered query of information acquired under this section if— the officer or employee conducting the query has a reasonable belief that an emergency exists involving an imminent threat of death or serious bodily harm; and not later than 14 days after the query is conducted, a description of the query is provided to the Foreign Intelligence Surveillance Court, the congressional intelligence committees, the Committee on the Judiciary of the House of Representatives, and the Committee on the Judiciary of the Senate; the person to whom the query relates or, if such person is incapable of providing consent, a third party legally authorized to consent on behalf of such person, has provided consent for the query on a case-by-case basis; the query is conducted, and the results of the query are used, for the sole purpose of identifying targeted recipients of malicious software and preventing or mitigating harm from such malicious software; other than malicious software and cybersecurity threat signatures, no additional contents of communications acquired as a result of the query are accessed or reviewed; and the query is reported to the Foreign Intelligence Surveillance Court; or the query is necessary to identify information that must be produced or preserved in connection with a litigation matter or to fulfill discovery obligations in a criminal matter under the laws of the United States or any State thereof. No officer or employee of the United States may access communications content, or information the compelled disclosure of which would require a probable cause warrant if sought for law enforcement purposes inside the United States, returned in response to a covered query unless an electronic record is created that includes a statement of facts showing that the access is authorized pursuant to an exception specified in paragraph (2)(B)(i). The head of each agency that conducts queries shall ensure that a system, mechanism, or business practice is in place to maintain the record described in paragraph (3). Not later than 90 days after the date of enactment of the SAFE Act , the head of each agency that conducts queries shall report to Congress on its compliance with this procedure. . Section 603(b)(2) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1873(b)(2) ) is amended, in the matter preceding subparagraph (A), by striking , including pursuant to subsection (f)(2) of such section, . Section 706(a)(2)(A)(i) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881e(a)(2)(A)(i) ) is amended by striking obtained an order of the Foreign Intelligence Surveillance Court to access such information pursuant to section 702(f)(2) and inserting accessed such information in accordance with section 702(b)(2) .
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