113 HR 4291 IH: FISA Transparency and Modernization Act U.S. House of Representatives 2014-03-25 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
I 113th CONGRESS 2d Session H. R. 4291 IN THE HOUSE OF REPRESENTATIVES March 25, 2014 Mr. Rogers of Michigan (for himself, Mr. Miller of Florida, Mr. Conaway, Mr. King of New York, Mr. LoBiondo, Mr. Nunes, Mr. Westmoreland, Mrs. Bachmann, Mr. Pompeo, Mr. Ruppersberger, Mr. Thompson of California, Mr. Langevin, and Ms. Sewell of Alabama) introduced the following bill; which was referred to the Select Committee on Intelligence (Permanent Select), and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the bulk collection of call detail records, and for other purposes.
1.
Short title
This Act may be cited as the FISA Transparency and Modernization Act.
2.
Prohibition on bulk collection of call detail records
Section 501(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended— (1)in paragraph (1), by striking other items and inserting other items, but not including call detail records; and (2)by adding at the end the following new paragraph: (4)In this subsection, the term call detail records means communications routing information, including an original or terminating telephone number, an International Mobile Subscriber Identity, an International Mobile Station Equipment Identity, a trunk identifier, a telephone calling card number, the time or duration of a call, or original or terminating text-message numerical information..
3.
Prohibition on bulk collection of electronic communications records
(a)
In general
Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) records of any electronic communication without the use of specific identifiers or selection terms. (b)
Definition of electronic communications
In this section, the term electronic communication has the meaning given such term under section 2510 of title 18, United States Code.
4.
Prohibition on bulk collection of certain business records
Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, educational records, or medical records containing information that would identify a person without the use of specific identifiers or selection terms.
5.
Appointment of amicus curiae
Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by adding at the end the following: (i)
Amicus curiae
(1)
Authorization
Notwithstanding any other provision of law, a court established under subsection (a) or (b) may, consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time, to appoint amicus curiae to assist the court in the consideration of a covered application. (2)
Designation
The courts established by subsection (a) and (b) shall each designate 1 or more individuals who have been determined by appropriate executive branch officials to be eligible for access to classified information who may be appointed to serve as amicus curiae. In appointing an amicus curiae pursuant to paragraph (1), the court may choose from among those so designated. (3)
Expertise
An individual appointed as an amicus curiae under paragraph (1) may be a special counsel or an expert on privacy and civil liberties, intelligence collection, telecommunications, or any other area that may lend legal or technical expertise to the court. (4)
Duties
An amicus curiae appointed under paragraph (1) to assist with the consideration of a covered application shall carry out the duties assigned by the appointing court. That court may authorize, to the extent consistent with the case or controversy requirements of article III of the Constitution of the United States and the national security of the United States, the amicus curiae to review any application, certification, petition, motion, or other submission that the court determines is relevant to the duties assigned by the court. (5)
Notification
A court established under subsection (a) or (b) shall notify the Attorney General of each exercise of the authority to appoint an amicus curiae under paragraph (1). (6)
Assistance
A court established under subsection (a) or (b) may request and receive (including on a non-reimbursable basis) the assistance of the executive branch in the implementation of this subsection. (7)
Administration
A court established under subsection (a) or (b) may provide for the designation, appointment, removal, training, support, or other administration of an amicus curiae appointed under paragraph (1) in a manner that is not inconsistent with this subsection. (8)
Congressional oversight
The Attorney General shall submit to the appropriate committees of Congress an annual report on the number of notices described in paragraph (5) received by Attorney General for the preceding 12-month period. Each such report shall include the name of each individual appointed as an amicus curiae during such period. (9)
Definitions
In this subsection: (A)
Appropriate committees of Congress
The term appropriate committees of Congress means— (i)the Committee on the Judiciary and the Select Committee on Intelligence of the Senate; and (ii)the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives. (B)
Covered application
The term covered application means an application for an order or review made to a court established under subsection (a) or (b)— (i)that, in the opinion of such a court, presents a novel or significant interpretation of the law; and (ii)that is— (I)an application for an order under this title, title III, IV, or V of this Act, or section 703 or 704 of this Act; (II)a review of a certification or procedures under section 503 or 702 of this Act; or (III)a notice of non-compliance with any such order, certification, or procedures..
6.
Reporting requirements for decisions of the Foreign Intelligence Surveillance Court
Section 601(c)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(c)) is amended to read as follows: (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 that includes a significant construction or interpretation of any provision of this Act or a denial of a request for an order or a modification of a request for an order, or results in a change of application of any provision of this Act or a new application of any provision of this Act— (A)a copy of such decision, order, or opinion and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion; and (B)with respect to such decision, order, or opinion, a brief statement of the relevant background factual information, questions of law, legal analysis, and decision rendered; and.
7.
Declassification of decisions, orders, and opinions
(a)
Declassification
Title VI of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871 et seq.) is amended— (1)in the heading, by striking Reporting Requirement and inserting Oversight; and(2)by adding at the end the following new section:
602.
Declassification of significant decisions, orders, and opinions
(a)
Declassification required
Subject to subsection (b), the Director of National Intelligence 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 that includes significant construction or interpretation of any provision of this Act 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 may satisfy the requirement under subsection (a) to make a decision, order, or opinions 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 may waive the requirement to declassify and make publicly available a particular decision, order, or opinion under subsection (a) if the Director— (1)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)makes publicly available an unclassified summary of such decision, order, or opinion.
. (b)
Table of contents amendments
The table of contents in the first section of such Act is amended— (1)by striking the item relating to title VI and inserting the following new item: TITLE VI—OVERSIGHT; and(2)by inserting after the item relating to section 601 the following new item: Sec. 602. Declassification of significant decisions, orders, and opinions..
8.
Public reporting on incidental collection of United States person information
Section 601 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871) is amended— (1)by redesignating subsection (e) as subsection (f); and (2)by inserting after subsection (d) the following new subsection: (e)
Public reporting on incidental collection of United States person information
The Attorney General shall annually make publicly available a report describing the number of identified instances in which the contents of a communication of a United States person was acquired under this Act when the acquisition authorized by this Act that resulted in the collection of such contents could not reasonably have been anticipated to capture such contents..
9.
Annual reports on violations of law or executive order
(a)
In general
Title V of the National Security Act of 1947 (50 U.S.C. 3091 et seq.) is amended by adding at the end the following:
509.
Annual report on violations of law or executive order
(a)
Annual reports required
Not later than April 1 of each year, the Director of National Intelligence shall submit to the congressional intelligence committees a report on violations of law or executive order by personnel of an element of the intelligence community that were identified during the previous calendar year. (b)
Elements
Each report required subsection (a) shall include a description of any violation of law or executive order (including Executive Order No. 12333 (50 U.S.C. 3001 note)) by personnel of an element of the intelligence community in the course of such employment that, during the previous calendar year, was determined by the director, head, general counsel, or inspector general of any element of the intelligence community to have occurred.
. (b)
Clerical amendment
The table of sections in the first section of the National Security Act of 1947 is amended by adding after the section relating to section 508 the following: Sec. 509. Annual report on violations of law or Executive order..
10.
Periodic review of intelligence community procedures for the acquisition, retention, and dissemination of intelligence
(a)
In general
Title V of the National Security Act of 1947 (50 U.S.C. 3091 et seq.), as amended by section 9, is further amended by adding at the end the following:
510.
Periodic review of intelligence community procedures for the acquisition, retention, and dissemination of intelligence
(a)
Head of an element of the intelligence community defined
In this section, the term head of an element of the intelligence community means, as appropriate— (1)the head of an element of the intelligence community; or (2)the head of the department or agency containing such element. (b)
Review of procedures approved by the Attorney General
(1)
Requirement for immediate review
Each head of an element of the intelligence community that has not obtained the approval of the Attorney General for the procedures, in their entirety, required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note) within 5 years prior to the date of the enactment of the FISA Transparency and Modernization Act, shall initiate, not later than 180 days after such date of enactment, a review of the procedures for such element, in accordance with paragraph (3). (2)
Requirement for review
Not less frequently than once every 5 years, each head of an element of the intelligence community shall conduct a review of the procedures approved by the Attorney General for such element that are required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note), or any successor order, in accordance with paragraph (3). (3)
Requirements for reviews
In coordination with the Director of National Intelligence and the Attorney General, the head of an element of the intelligence community required to perform a review under paragraph (1) or (2) shall— (A)review existing procedures for such element that are required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note), or any successor order, to assess whether— (i)advances in communications or other technologies since the time the procedures were most recently approved by the Attorney General have affected the privacy protections that the procedures afford to United States persons, to include the protections afforded to United States persons whose nonpublic communications are incidentally acquired by an element of the intelligence community; or (ii)aspects of the existing procedures impair the acquisition, retention, or dissemination of timely, accurate, and insightful information about the activities, capabilities, plans, and intentions of foreign powers, organization, and persons, and their agents; and (B)propose any modifications to existing procedures for such element in order to— (i)clarify the guidance such procedures afford to officials responsible for the acquisition, retention, and dissemination of intelligence; (ii)eliminate unnecessary impediments to the acquisition, retention, and dissemination of intelligence; or (iii)ensure appropriate protections for the privacy of United States persons and persons located inside the United States. (4)
Notice
The Director of National Intelligence and the Attorney General shall notify the congressional intelligence committees following the completion of each review required under this section. (5)
Requirement to provide procedures
Upon the implementation of any modifications to procedures required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note), or any successor order, the head of the element of the intelligence community to which the modified procedures apply shall promptly provide a copy of the modified procedures to the congressional intelligence committees.
. (b)
Clerical amendment
The table of sections in the first section of the National Security Act of 1947, as amended by section 9, is further amended by adding after the section relating to section 509 the following: Sec. 510. Periodic review of intelligence community procedures for the acquisition, retention, and dissemination of intelligence..
11.
Procedures for targeted acquisitions of terrorist and foreign agent non-content communications records
(a)
In general
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:
503.
Procedures for targeted acquisitions of terrorist and foreign agent non-content communications records
(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 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— (1)a foreign power or the agent of a foreign power; (2)associated with a foreign power or the agent of a foreign power; or (3)in contact with, or known to, a suspected agent of a foreign power. (b)
Limitations
An acquisition authorized under subsection (a) shall be reasonably designed— (1)not to acquire— (A)the contents associated with any communication; (B)records of wire or electronic communications without the use of specific identifiers or selection terms; (C)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 (D)the name, address, social security number, employer or taxpayer identification number, date of birth, or credit card number of any United States person; and (2)to comply 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— (A)in accordance with the selection and civil liberties and privacy protection procedures adopted in accordance with subsections (d) and (e); and (B)upon submission of a certification in accordance with subsection (g). (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. (d)
Selection procedures
(1)
Requirement to adopt
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); (2)
Judicial review
The procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i). (e)
Civil liberties and privacy protection procedures
(1)
Requirement to adopt
The Attorney General, in consultation with the Director of National Intelligence, shall adopt civil liberties and privacy protection procedures that are reasonably designed to— (A)minimize the impact of any acquisition authorized by (a) on the privacy and civil liberties of United States persons; and (B)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. (2)
Judicial review
The civil liberties and privacy protection 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 requirements and limitations under subsections (a) and (b); and (B)that an application for a court order is filed as required by this title. (2)
Submission of guidelines
The Attorney General shall provide the guidelines adopted in accordance with paragraph (1)— (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 to submit certification
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)
Certification requirements
A certification made under this subsection shall— (A)attest that— (i)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); (ii)the civil liberties and privacy protection procedures to be used with respect to such acquisition— (I)meet the requirements of civil liberties and privacy protection procedures adopted under subsection (e); 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 chapter; (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 communications 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)
Maintenance of certification
The Attorney General or a designee of the Attorney General shall maintain a copy of a certification made under this subsection. (5)
Judicial review
A certification submitted in accordance with this subsection shall be subject to judicial review pursuant to subsection (i). (h)
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 communications service provider to— (A)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 (B)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. (2)
Compensation and assistance
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). (3)
Record requirement
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). (4)
Judicial review
(A)
Requirement to provide directives and supporting records
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). (B)
Remedy for improper directives
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. (5)
Challenging of directives
(A)
Authority to challenge
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. (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 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. (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. (6)
Enforcement of directives
(A)
Order to compel
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. (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 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. (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 communications service provider may be found. (7)
Appeal
(A)
Appeal to the Court of Review
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. (B)
Certiorari to the Supreme Court
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. (8)
Rule of construction
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). (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 selection and civil liberties and privacy protection 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 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. (C)
Amendments
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. (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)
Selection procedures
The selection procedures adopted in accordance with subsection (d) to assess whether the procedures are reasonably designed to meet the requirements of subsection (d). (C)
Civil liberties and privacy protection procedures
The civil liberties and privacy protection procedures adopted in accordance with subsection (e) to assess whether such procedures meet the requirements of subsection (e). (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 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. (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. (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 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— (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 communications records under subsection (a), with respect to the department or element of such Inspector General— (A)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); (B)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. (m)
Definitions
In this section: (1)The terms contents, wire communication, and electronic communication have the meaning given such terms in section 2510 of title 18, United States Code. (2)The term electronic communication service provider has the meaning given such term in section 701. (3)The terms foreign power and agent of a foreign power have the meanings given such terms in section 101.
. (b)
Clerical amendment
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.. (c)
Conforming amendment
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).
12.
Continuous evaluation and sharing of derogatory information regarding personnel with access to classified information
Section 102A(j) of the National Security Act of 1947 (50 U.S.C. 3024(j)) is amended— (1)in the heading, by striking Sensitive Compartmented Information and inserting Classified Information; (2)in paragraph (3), by striking ; and and inserting a semicolon; (3)in paragraph (4), by striking the period and inserting a semicolon; and (4)by adding at the end the following new paragraphs: (5)ensure that the background of each employee or officer of an element of the intelligence community, each contractor to an element of the intelligence community, and each individual employee of such a contractor who has been determined to be eligible for access to classified information is monitored on a continual basis under standards developed by the Director, including with respect to the frequency of evaluation, during the period of eligibility of such employee or officer of an element of the intelligence community, such contractor, or such individual employee to such a contractor to determine whether such employee or officer of an element of the intelligence community, such contractor, and such individual employee of such a contractor continues to meet the requirements for eligibility for access to classified information; and (6)develop procedures to require information sharing between elements of the intelligence community concerning potentially derogatory security information regarding an employee or officer of an element of the intelligence community, a contractor to an element of the intelligence community, or an individual employee of such a contractor that may impact the eligibility of such employee or officer of an element of the intelligence community, such contractor, or such individual employee of such a contractor for a security clearance..
13.
Requirements for intelligence community contractors
(a)
Requirements
Section 102A of the National Security Act of 1947 (50 U.S.C. 3024) is amended by adding at the end the following new subsection: (x)
Requirements for intelligence community contractors
The Director of National Intelligence, in consultation with the head of each department of the Federal Government that contains an element of the intelligence community and the Director of the Central Intelligence Agency, shall— (1)ensure that— (A)any contractor to an element of the intelligence community with access to a classified network or classified information develops and operates a security plan that is consistent with standards established by the Director of National Intelligence for intelligence community networks; and (B)each contract awarded by an element of the intelligence community includes provisions requiring the contractor comply with such plan and such standards; (2)conduct periodic assessments of each security plan required under paragraph (1)(A) to ensure such security plan complies with the requirements of such paragraph; and (3)ensure that the insider threat detection capabilities and insider threat policies of the intelligence community apply to facilities of contractors with access to a classified network.. (b)
Applicability
The amendment made by subsection (a) shall apply with respect to contracts entered into or renewed after the date of the enactment of this Act.