II 112th CONGRESS 2d Session S. 3515 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.

1.

Short title

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

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 .

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. .

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:

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. .