Protections relating to warrantless queries for the communications of United States persons

(a)

In general

Section 702(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)) is amended—(1)in paragraph (1)(A), by inserting and the limitations and requirements in this subsection after Constitution of the United States;(2)in paragraph (5)—(A)by striking subparagraph (B), and inserting the following:

(B)The term covered information means—(i)communications content; and(ii)information, the compelled disclosure of which would require a probable cause warrant if sought for law enforcement purposes inside the United States.(C)The term covered person means—(i)a United States person; or(ii)a person reasonably believed to be located in the United States—(I)at the time of the applicable query; or(II)at the time of the communication or creation of the information subject to the applicable query.(D)The term covered query means a query that is conducted—(i)using any terms associated with 1 or more covered persons; or(ii)for a significant purpose of detecting or retrieving information of or concerning 1 or more covered persons.(E)The term query—(i)means the use of any technique, whether manual or automated, to detect or retrieve information obtained through acquisitions authorized under subsection (a) from within a system, collection, or assortment of information, or a subset thereof; and(ii)does not include the manual observation of retrieved information.

; and

(3)by striking paragraphs (2) and (3) and inserting the following:

(2)

Prohibition on warrantless access to the communications and other information of United States persons and persons located in the United States

(A)

In general

Except as provided in subparagraphs (B) and (C), no officer or employee of the Federal Government may access covered information returned in response to a covered query.(B)

Exceptions for concurrent authorization, consent, emergency situations, and certain defensive cybersecurity queries

(i)

In general

Subparagraph (A) shall not apply if—(I)the covered person to whom the covered query relates is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105, 304, 703 or 704 of this Act, or a warrant issued pursuant to the Federal Rules of Criminal Procedure by a court of competent jurisdiction, if—(aa)such order, authorization, or warrant is active at the time the covered query is conducted;(bb)the covered query is conducted and covered information is accessed in compliance with all use, dissemination, querying, retention, and other minimization limitations required by the order, authorization, or warrant; and(cc)with respect to an emergency authorization, the Attorney General makes or has made an application to the Foreign Intelligence Surveillance Court in accordance with section 105, 304, 703 or 704, as applicable;(II)(aa)the officer or employee accessing the covered information has a reasonable belief that—(AA)an emergency exists involving an imminent threat of death or serious bodily harm; and(BB)in order to prevent or mitigate the threat described in item (aa), the covered information must be accessed before authorization described in clause (i) can, with due diligence, be obtained; and(bb)not later than 7 days after the covered information is accessed, a description of the circumstances justifying the accessing of the covered information 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;(III)the covered person to whom the covered 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 access on a case-by-case basis; or(IV)(aa)the covered information is accessed and used for defensive cybersecurity purposes, including the protection of a covered person from cybersecurity attack;(bb)other than for such defensive cybersecurity purposes, no covered information is accessed or reviewed; and(cc)not later than 7 days after the covered information is accessed, a description of the circumstances justifying the accessing of the covered information 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.(ii)

Matters relating to emergency queries

(I)

Treatment of denials of applications after emergency authorizations

If the Foreign Intelligence Surveillance Court denies an application described in clause (i)(I)(cc), the restrictions set forth in section 105(e)(5), 304(e)(5), 703(d)(4), or 704(d)(4), as applicable, shall apply.(II)

Foreign Intelligence Surveillance Court review of emergency exception

(aa)

In general

Not later than 7 days after receipt of a description provided under clause (i)(II)(bb), the Foreign Intelligence Surveillance Court shall determine whether the criteria set forth in clause (i)(II)(aa) were met.(bb)

Submission

The Foreign Intelligence Surveillance Court may require the submission of any additional information the Court considers necessary to make the determination described in item (aa).(cc)

Criteria not met

If the Foreign Intelligence Surveillance Court determines that the criteria set forth in item (aa) of clause (i)(II) were not met, no information obtained or evidence derived from the accessing of querying results 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 covered person acquired from accessing of the results of the covered query shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.(dd)

Submissions to Congress

Not later than 7 days after the determination described in item (aa) is made, a copy of such determination shall be provided to the congressional intelligence committees, the Committee on the Judiciary of the House of Representatives, and the Committee on the Judiciary of the Senate.(iii)

Assessment of compliance

Not less frequently than once each year, the Attorney General shall assess compliance with the requirements under subclauses (I)(cc) and (II)(bb) of clause (i) and subclauses (I) and (II)(cc) of clause (ii).(C)

Foreign intelligence purpose required for queries

(i)

In general

Except as provided in clause (ii), no officer or employee of the Federal Government may conduct a query unless the query is—(I)reasonably likely to retrieve foreign intelligence information; and(II)is made with a significant foreign intelligence purpose.(ii)

Exceptions

An officer or employee of the Federal Bureau of Investigation may conduct a query if—(I)(aa)the officer or employee conducting the query has a reasonable belief that—(AA)an emergency exists involving an imminent threat of death or serious bodily harm; and(BB)the query could reasonably be expected to assist in mitigating or eliminating that threat to life or serious bodily harm; and(bb)not later than 7 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; or(II)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.(iii)

Rule of construction

Nothing in this subparagraph shall be construed to limit any oversight or training activities required under any other provision of law.(3)

Required documentation and query record system

(A)

Documentation

No officer or employee of the Federal Government may conduct a query, or access covered information returned in response to a covered query, unless an electronic record is created that includes—(i)for each query—(I)each term used for the conduct of the query;(II)the date of the query;(III)the identifier of the officer or employee who conducted the query; and(IV)a statement of facts justifying that the query is reasonably likely to retrieve foreign intelligence information and the significant foreign intelligence purpose for the query or, if an exception under subparagraph (D)(ii) applies, a description of the basis for such exception; and(ii)for each access—(I)the date of the access;(II)the identifier of the officer or employee who did the particular access; and(III)a statement of facts showing that an access is authorized by an exception under subparagraph (B).(B)

Query record system

Each head of an agency who is authorized to conduct a covered query shall ensure that a system, mechanism, or business practice is in place to maintain the records described in subparagraph (A), including ensuring that any queries or accesses to covered information returned in response to covered queries, that are conducted by automated means are attributed to the officer or employee who was the proximate cause of such query or access.

(b)

Report on compliance with query record system requirement

Not later than 90 days after the date of enactment of this Act, each head of a Federal agency described in section 702(f)(3)(B) of such Act, as added by subsection (a), shall submit to the congressional intelligence committees, the Committee on the Judiciary of the House of Representatives, and the Committee on the Judiciary of the Senate a report on the compliance of the Federal agency with the requirement of such section.(c)

Conforming amendments

Section 702(f) of such Act, as amended by subsection (a), is further amended—(1)in the headings for subparagraph (B) of paragraph (1), subparagraph (A) of paragraph (2), and subparagraph (A) of paragraph (3), by striking

United States person

each place it appears and inserting

covered person

;(2)in paragraph (6)—(A)in the heading, by striking

non-United States persons

and inserting

noncovered persons

; and(B)by striking non-United States persons and inserting noncovered persons; and(3)in paragraphs (1) through (6), by striking United States person each place it appears and inserting covered person.