[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3515 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 3515

 To amend the Foreign Intelligence Surveillance Act of 1978 to provide 
       additional protections for privacy and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 2, 2012

  Mr. Merkley (for himself, Mr. Wyden, and Mr. Tester) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend the Foreign Intelligence Surveillance Act of 1978 to provide 
       additional protections for privacy and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Protect America's Privacy Act of 
2012''.

SEC. 2. PROHIBITION ON REVERSE TARGETING UNDER FISA.

    Section 702 of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1881a) is amended--
            (1) in subsection (b)(2), by striking ``the purpose'' and 
        all that follows and inserting the following: ``a significant 
        purpose of the acquisition is to acquire the communications of 
        a particular, known person reasonably believed to be located in 
        the United States, except in accordance with title I;'';
            (2) in subsection (d)(1)(A)--
                    (A) by striking ``ensure that'' and insert the 
                following: ``ensure--
                            ``(i) that''; and
                    (B) by adding at the end the following:
                            ``(ii) that an application is filed under 
                        title I, if otherwise required, when a 
                        significant purpose of an acquisition 
                        authorized under subsection (a) is to acquire 
                        the communications of a particular, known 
                        person reasonably believed to be located in the 
                        United States; and'';
            (3) in subsection (g)(2)(A)(i)(I)--
                    (A) by striking ``ensure that'' and insert the 
                following: ``ensure--
                                            ``(aa) that''; and
                    (B) by adding at the end the following:
                                            ``(bb) that an application 
                                        is filed under title I, if 
                                        otherwise required, when a 
                                        significant purpose of an 
                                        acquisition authorized under 
                                        subsection (a) is to acquire 
                                        the communications of a 
                                        particular, known person 
                                        reasonably believed to be 
                                        located in the United States; 
                                        and''; and
            (4) in subsection (i)(2)(B)(i)--
                    (A) by striking ``ensure that'' and insert the 
                following: ``ensure--
                                    ``(I) that''; and
                    (B) by adding at the end the following:
                                    ``(II) that an application is filed 
                                under title I, if otherwise required, 
                                when a significant purpose of an 
                                acquisition authorized under subsection 
                                (a) is to acquire the communications of 
                                a particular, known person reasonably 
                                believed to be located in the United 
                                States; and''.

SEC. 3. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION UNDER FISA.

    Section 702(i)(3) of the Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1881a(i)(3)) is amended by striking subparagraph (B) 
and inserting the following:
                    ``(B) Correction of deficiencies.--
                            ``(i) In general.--If the Court finds that 
                        a certification required by subsection (g) does 
                        not contain all of the required elements, or 
                        that the procedures required by 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 order of the Court--
                                    ``(I) correct any deficiency 
                                identified by the order of the Court 
                                not later than 30 days after the date 
                                on which the Court issues the order; or
                                    ``(II) cease the acquisition 
                                authorized under subsection (a).
                            ``(ii) Limitation on use of information.--
                                    ``(I) In general.--Except as 
                                provided in subclause (II), no 
                                information obtained or evidence 
                                derived from an acquisition determined 
                                to be deficient under clause (i) 
                                concerning any person located in the 
                                United States or United States person 
                                shall be received in evidence or 
                                otherwise disclosed 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 information concerning 
                                any United States person acquired from 
                                the acquisition shall subsequently be 
                                used or disclosed in any other manner 
                                by Federal officers or employees 
                                without the consent of the United 
                                States person, except with the approval 
                                of the Attorney General if the 
                                information indicates a threat of death 
                                or serious bodily harm to any person.
                                    ``(II) Exception.--If the 
                                Government corrects any deficiency 
                                identified by the order of the Court 
                                under clause (i), the Court may permit 
                                the use or disclosure of information 
                                acquired before the date of the 
                                correction under such minimization 
                                procedures as the Court shall establish 
                                for purposes of this clause.''.

SEC. 4. PRIVACY PROTECTIONS FOR INTERNATIONAL COMMUNICATIONS OF 
              AMERICANS COLLECTED UNDER FISA.

    (a) In General.--Title VII of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1881) is amended by adding at the end the 
following:

``SEC. 709. ADDITIONAL SAFEGUARDS FOR COMMUNICATIONS OF PERSONS IN THE 
              UNITED STATES.

    ``(a) Limitations on Acquisition of Communications.--
            ``(1) Limitation.--Except as authorized under title I or 
        paragraph (2), no communication shall be acquired under this 
        title if the Government knows before or at the time of 
        acquisition that the communication is to or from a person 
        reasonably believed to be located in the United States.
            ``(2) Exception.--
                    ``(A) In general.--In addition to any authority 
                under title I to acquire communications described in 
                paragraph (1), the communications may be acquired if--
                            ``(i) there is reason to believe that the 
                        communication concerns international terrorist 
                        activities directed against the United States, 
                        or activities in preparation therefor;
                            ``(ii) there is probable cause to believe 
                        that the target reasonably believed to be 
                        located outside the United States is an agent 
                        of a foreign power and the foreign power is a 
                        group engaged in international terrorism or 
                        activities in preparation therefor; or
                            ``(iii) there is reason to believe that the 
                        acquisition is necessary to prevent death or 
                        serious bodily harm.
                    ``(B) Access to communications.--Communications 
                acquired under this paragraph shall be treated in 
                accordance with subsection (b).
            ``(3) Procedures for determinations before or at the time 
        of acquisition.--
                    ``(A) Submission.--Not later than 120 days after 
                the date of the enactment of the Protect America's 
                Privacy Act of 2012, the Attorney General, in 
                consultation with the Director of National 
                Intelligence, shall submit to the Foreign Intelligence 
                Surveillance Court for approval procedures for 
                determining before or at the time of acquisition, if 
                reasonably practicable, whether a communication is to 
                or from a person reasonably believed to be located in 
                the United States and whether the exception under 
                paragraph (2) applies to that communication.
                    ``(B) Review.--The Foreign Intelligence 
                Surveillance Court shall approve the procedures 
                submitted under subparagraph (A) if the procedures are 
                reasonably designed to determine before or at the time 
                of acquisition, if reasonably practicable, whether a 
                communication is to or from a person reasonably 
                believed to be located in the United States and whether 
                the exception under paragraph (2) applies to that 
                communication.
                    ``(C) Procedures do not meet requirements.--If the 
                Foreign Intelligence Surveillance Court concludes that 
                the procedures submitted under subparagraph (A) do not 
                meet the requirements of subparagraph (B), this 
                section, and the 4th Amendment, the Court shall enter 
                an order so stating and provide a written statement for 
                the record of the reasons for the determination. The 
                Government may appeal an order under this subparagraph 
                to the Foreign Intelligence Surveillance Court of 
                Review.
                    ``(D) Use of procedures.--If the Foreign 
                Intelligence Surveillance Court approves procedures 
                under this paragraph, the Government shall use the 
                procedures in any acquisition of communications under 
                this title.
                    ``(E) Revisions.--The Attorney General, in 
                consultation with the Director of National 
                Intelligence, may submit new or amended procedures to 
                the Foreign Intelligence Surveillance Court for review 
                under this paragraph.
                    ``(F) Reliability.--If the Government obtains new 
                information relating to the reliability of procedures 
                approved under this paragraph or the availability of 
                more reliable procedures, the Attorney General shall 
                submit to the Foreign Intelligence Surveillance Court 
                the information.
    ``(b) Limitations on Access to Communications.--
            ``(1) In general.--At such time as the Government can 
        reasonably determine that a communication acquired under this 
        title (including a communication acquired under subsection 
        (a)(2)) is to or from a person reasonably believed to be 
        located in the United States or a United States person the 
        communication shall be specifically designated and handled or 
        otherwise managed such that no person may access or search for 
        the communication, except in accordance with title I, this 
        section, or chapter 119 of title 18, United States Code.
            ``(2) Exceptions.--In addition to any authority under title 
        I, including the emergency provision in section 105(f), a 
        communication described in paragraph (1) may be accessed and 
        disseminated for a period of not longer than 7 days if--
                    ``(A)(i) there is reason to believe that the 
                communication concerns international terrorist 
                activities directed against the United States, or 
                activities in preparation therefor;
                    ``(ii) there is probable cause to believe that the 
                target reasonably believed to be located outside the 
                United States is an agent of a foreign power and the 
                foreign power is a group engaged in international 
                terrorism or activities in preparation therefor; or
                    ``(iii) there is reason to believe that the access 
                is necessary to prevent death or serious bodily harm;
                    ``(B) the Attorney General notifies the Foreign 
                Intelligence Surveillance Court immediately of the 
                access; and
                    ``(C) not later than 7 days after the date the 
                access is initiated, the Attorney General--
                            ``(i) makes an application for an order 
                        under title I or pursuant to chapter 119 of 
                        title 18, United States Code; or
                            ``(ii) submits to the Foreign Intelligence 
                        Surveillance Court a document that--
                                    ``(I) certifies that--
                                            ``(aa) there is reason to 
                                        believe that the communication 
                                        concerns international 
                                        terrorist activities directed 
                                        against the United States, or 
                                        activities in preparation 
                                        therefor;
                                            ``(bb) there is probable 
                                        cause to believe that the 
                                        target reasonably believed to 
                                        be located outside the United 
                                        States is an agent of a foreign 
                                        power and the foreign power is 
                                        a group engaged in 
                                        international terrorism or 
                                        activities in preparation 
                                        therefor; or
                                            ``(cc) there is reason to 
                                        believe that the access is 
                                        necessary to prevent death or 
                                        serious bodily harm; and
                                    ``(II) identifies the target of the 
                                collection, the party to the 
                                communication who is in the United 
                                States if known, and the extent to 
                                which information relating to the 
                                communication has been disseminated.
            ``(3) Denial of court order.--If an application for a court 
        order described in paragraph (2)(C)(i) is made and is not 
        approved, the Attorney General shall submit to the Foreign 
        Intelligence Surveillance Court, not later than 7 days after 
        the date of the denial of the application, the document 
        described in paragraph (2)(C)(ii).
            ``(4) Additional court authorities.--
                    ``(A) In general.--The Foreign Intelligence 
                Surveillance Court may--
                            ``(i) limit access to communications 
                        described in paragraph (1) relating to a 
                        particular target if the Court determines that 
                        any certification submitted under paragraph 
                        (2)(C)(ii)(I) with respect to that target is 
                        clearly erroneous; and
                            ``(ii) require the Attorney General to 
                        provide the factual basis for a certification 
                        submitted under paragraph (2)(C)(ii)(I), if the 
                        Court determines it would aid the Court in 
                        conducting review under this subsection.
                    ``(B) FISC access.--The Foreign Intelligence 
                Surveillance Court shall have access to any 
                communications that have been specifically designated 
                under paragraph (1) and any information the use of 
                which has been limited under paragraph (5).
            ``(5) Failure to notify.--
                    ``(A) In general.--In the circumstances described 
                in subparagraph (B), access to a communication shall 
                terminate, and no information obtained or evidence 
                derived from the access concerning any United States 
                person shall be received in evidence or otherwise 
                disclosed 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 information 
                concerning any United States person acquired from the 
                access shall subsequently be used or disclosed in any 
                manner by Federal officers or employees without the 
                consent of the person, except with the approval of the 
                Attorney General if the information indicates a threat 
                of death or serious bodily harm to any person, or if a 
                court order is obtained under title I or pursuant to 
                chapter 119 of title 18, United States Code.
                    ``(B) Circumstances.--The circumstances described 
                in this subparagraph are circumstances in which--
                            ``(i) as of the date that is 7 days after 
                        the date on which access to a communication is 
                        initiated under paragraph (2), a court order 
                        described in paragraph (2)(C)(i) has not been 
                        sought and the document described in paragraph 
                        (2)(C)(ii) has not been submitted; or
                            ``(ii) as of the date that is 7 days after 
                        an application for a court order described in 
                        paragraph (2)(C)(i) is denied, the document 
                        described in paragraph (2)(C)(ii) is not 
                        submitted in accordance with paragraph (3).
            ``(6) Evidence of a crime.--Information or communications 
        subject to this subsection may be disseminated for law 
        enforcement purposes if it is evidence that a crime has been, 
        is being, or is about to be committed, if dissemination is made 
        in accordance with section 106(b).
            ``(7) Procedures for determinations after acquisition.--
                    ``(A) In general.--Not later than 120 days after 
                the date of enactment of the Protect America's Privacy 
                Act of 2012, the Attorney General, in consultation with 
                the Director of National Intelligence, shall submit to 
                the Foreign Intelligence Surveillance Court for 
                approval procedures--
                            ``(i) for determining, if reasonably 
                        practicable, whether a communication acquired 
                        under this title is to or from a person 
                        reasonably believed to be in the United States 
                        or is a United States person; and
                            ``(ii) for ensuring that no person may 
                        access such a communication, except as 
                        described in subsection (b)(1).
                    ``(B) Review.--The Foreign Intelligence 
                Surveillance Court shall approve the procedures 
                submitted under subparagraph (A) if the procedures are 
                reasonably designed to determine, if reasonably 
                practicable, whether a communication acquired under 
                this title is a communication to or from a person 
                reasonably believed to be located in the United States.
                    ``(C) Procedures do not meet requirements.--If the 
                Foreign Intelligence Surveillance Court concludes that 
                the procedures submitted under subparagraph (A) do not 
                meet the requirements of subparagraph (B), this 
                section, or the Fourth Amendment to the Constitution of 
                the United States, the Court shall enter an order so 
                stating and provide a written statement for the record 
                of the reasons for the determination. The Government 
                may appeal an order under this subparagraph to the 
                Foreign Intelligence Surveillance Court of Review.
                    ``(D) Use of procedures.--If the Foreign 
                Intelligence Surveillance Court approves under this 
                paragraph the procedures submitted under subparagraph 
                (A), the Government shall use such procedures for any 
                communication acquired under this title.
                    ``(E) Revisions.--If the Attorney General seeks to 
                replace or modify procedures approved under this 
                paragraph, the Attorney General, in consultation with 
                the Director of National Intelligence, shall submit the 
                replacement or modified procedures to the Foreign 
                Intelligence Surveillance Court. The Court shall review 
                such replacement or modified procedures as provided in 
                this paragraph.
                    ``(F) Reliability.--If the Government obtains new 
                information relating to the reliability of procedures 
                approved under this paragraph or the availability of 
                more reliable procedures, the Attorney General shall 
                submit to the Foreign Intelligence Surveillance Court 
                such information.
    ``(c) Title I Court Order.--If the Government obtains a court order 
under title I relating to a target of an acquisition under this title, 
the Government may access and disseminate, under the terms of that 
court order and any applicable minimization requirements, any 
communications of that target that have been acquired or specifically 
designated under subsection (b)(1).
    ``(d) Inspector General Audit.--
            ``(1) Audit.--Not less than once each year, the Inspector 
        General of the Department of Defense and the Inspector General 
        of the Department of Justice shall complete an audit of the 
        implementation of and compliance with this section. For 
        purposes of an audit under this paragraph, the Inspectors 
        General shall have access to any communications that have been 
        specifically designated under subsection (b)(1) and any 
        information the use of which has been limited under subsection 
        (b)(5). An audit under this paragraph shall include an 
        accounting of any specifically designated communications that 
        have been disseminated.
            ``(2) Report.--Not later than 30 days after the completion 
        of each audit under paragraph (1), the Inspectors General shall 
        jointly submit to the Permanent Select Committee on 
        Intelligence and the Committee on the Judiciary of the House of 
        Representatives and the Select Committee on Intelligence and 
        the Committee on the Judiciary of the Senate a report 
        containing the results of the audit.
            ``(3) Expedited security clearance.--The Director of 
        National Intelligence shall ensure that the process for the 
        investigation and adjudication of an application by an 
        Inspector General or any appropriate staff of an Inspector 
        General for a security clearance necessary for the conduct of 
        the audits under this subsection is conducted as expeditiously 
        as possible.
    ``(e) Applicability.--Subsections (a) and (b) shall apply to any 
communication acquired under this title on or after the earlier of--
            ``(1) the date that the Foreign Intelligence Surveillance 
        Court approves the procedures described in subsection (a)(3) 
        and the procedures described in subsection (b)(7); and
            ``(2) 1 year after the date of enactment of the Protect 
        America's Privacy Act of 2012.''.
    (b) Technical and Conforming Amendment.--The table of contents in 
the first section of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended by inserting after the item 
relating to section 708 the following:

``Sec. 709. Additional safeguards for communications of persons in the 
                            United States.''.
                                 <all>