[Congressional Record Volume 164, Number 9 (Tuesday, January 16, 2018)]
[Senate]
[Pages S190-S195]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1876. Mr. LEE (for himself, Mr. Leahy, Mr. Daines, and Mr.
Blumenthal) submitted an amendment intended to be proposed by him to
the House Amendment to the bill S. 139, to implement the use of Rapid
DNA instruments to inform decisions about pretrial release or detention
and their conditions, to solve and prevent violent crimes and other
crimes, to exonerate the innocent, to prevent DNA analysis backlogs,
and for other purposes; which was ordered to lie on the table; as
follows:
In lieu of the matter proposed to be inserted, insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Uniting
and Strengthening American Liberty Act of 2017'' or the ``USA
Liberty Act of 2017''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendments to the Foreign Intelligence Surveillance Act of
1978.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE AND ACCOUNTABILITY
Sec. 101. Court orders and protection of incidentally collected United
States person communications.
Sec. 102. Attorney General approval and additional protection of
incidentally collected United States person
communications.
Sec. 103. Limitation on collection and improvements to targeting
procedures and minimization procedures.
Sec. 104. Publication of minimization procedures under section 702.
Sec. 105. Appointment of amicus curiae for annual certifications.
Sec. 106. Increased accountability on incidentally collected
communications.
Sec. 107. Semiannual reports on certain queries by Federal Bureau of
Investigation.
Sec. 108. Additional reporting requirements.
Sec. 109. Application of certain amendments.
Sec. 110. Sense of Congress on purpose of section 702 and respecting
foreign nationals.
TITLE II--SAFEGUARDS AND OVERSIGHT OF PRIVACY AND CIVIL LIBERTIES
Sec. 201. Limitation on retention of certain data.
Sec. 202. Improvements to Privacy and Civil Liberties Oversight Board.
Sec. 203. Privacy and civil liberties officers.
Sec. 204. Whistleblower protections for contractors of the intelligence
community.
TITLE III--EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND
OTHER MATTERS
Sec. 301. Extension of title VII of FISA; effective dates.
Sec. 302. Increased penalty for unauthorized removal and retention of
classified documents or material.
Sec. 303. Rule of construction regarding criminal penalties for
unauthorized use of information acquired under section
702 and unauthorized disclosure of United States person
information.
Sec. 304. Comptroller General study on unauthorized disclosures and the
classification system.
Sec. 305. Sense of Congress on information sharing among intelligence
community to protect national security.
Sec. 306. Sense of Congress on combating terrorism.
Sec. 307. Technical amendments and amendments to improve procedures of
the Foreign Intelligence Surveillance Court of Review.
[[Page S191]]
Sec. 308. Severability.
Sec. 309. Rule of construction.
SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT OF 1978.
Except as otherwise expressly provided, whenever in this
Act an amendment or repeal is expressed in terms of an
amendment to, or a repeal of, a section or other provision,
the reference shall be considered to be made to a section or
other provision of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.).
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE AND ACCOUNTABILITY
SEC. 101. COURT ORDERS AND PROTECTION OF INCIDENTALLY
COLLECTED UNITED STATES PERSON COMMUNICATIONS.
(a) In General.--Section 702 (50 U.S.C. 1881a) is amended--
(1) by redesignating subsections (j), (k), and (l) as
subsections (k), (l), and (m), respectively; and
(2) by inserting after subsection (i) the following:
``(j) Requirements for Access and Dissemination of
Collections of Communications.--
``(1) Court orders.--
``(A) In general.--Except as provided under paragraph (3),
in response to a query relating to a United States person or
a person reasonably believed to be located in the United
States, the contents of queried communications acquired under
subsection (a) may be accessed or disseminated only if--
``(i) the Attorney General submits to the Foreign
Intelligence Surveillance Court an application that
demonstrates that--
``(I) there is probable cause to believe that--
``(aa) such contents provide evidence of a crime specified
in section 2516 of title 18, United States Code; or
``(bb) the individual is an agent of a foreign power; and
``(II) any use of such communications pursuant to section
706 will be carried out in accordance with such section; and
``(ii) a judge of the Foreign Intelligence Surveillance
Court reviews and approves such application under
subparagraph (B).
``(B) Order.--
``(i) Approval.--Upon an application made under
subparagraph (A), the Foreign Intelligence Surveillance Court
shall enter an order as requested or as modified by the Court
approving the access or dissemination of contents of
communications covered by the application if the Court
determines that, based on an independent review--
``(I) the application contains all information required
under subparagraph (A);
``(II) on the basis of the facts in the application, there
is probable cause to believe that--
``(aa) such contents provide evidence of a crime specified
in section 2516 of title 18, United States Code; or
``(bb) the person identified by the queried term is an
agent of a foreign power; and
``(III) the minimization procedures adopted pursuant to
subsection (e) will ensure compliance with subparagraph
(A)(i)(II).
``(ii) Review.--A denial of an application submitted under
subparagraph (A) may be reviewed as provided in section 103.
``(2) Expeditious consideration.--Any application submitted
under paragraph (1)(A) shall be considered by the Foreign
Intelligence Surveillance Court expeditiously and without
delay.
``(3) Exceptions.--The requirement for an order pursuant to
paragraph (1) shall not apply to accessing or disseminating
communications acquired under subsection (a) if--
``(A) the Attorney General determines that the person
identified by the queried term is the subject of an order
based upon a finding of probable cause, or emergency
authorization, that authorizes electronic surveillance or
physical search under this Act or title 18, United States
Code (other than such emergency authorizations under title IV
of this Act or section 3125 of title 18, United States Code);
``(B) the Attorney General--
``(i) reasonably determines that an emergency situation
requires the accessing or dissemination of the communications
before an order pursuant to paragraph (1) authorizing such
access or dissemination can with due diligence be obtained;
``(ii) reasonably believes that the factual basis for the
issuance of such an order exists; and
``(iii) with respect to the access or dissemination of the
contents of such communications--
``(I) informs the Court at the time the Attorney General
requires the emergency access or dissemination that the
decision has been made to employ the authority under this
paragraph; and
``(II) may not use the contents of such communications
pursuant to section 706 if the Court finds that the
determination by the Attorney General with respect to the
emergency situation was not appropriate; or
``(C) there is consent provided in accordance with
paragraph (12).''.
(b) Technical and Conforming Amendment.--Section 404(b)(4)
of the Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2008 (50 U.S.C. 1801 note) is amended by
striking ``702(l)'' each place it appears and inserting
``702(m)''.
SEC. 102. ATTORNEY GENERAL APPROVAL AND ADDITIONAL PROTECTION
OF INCIDENTALLY COLLECTED UNITED STATES PERSON
COMMUNICATIONS.
Subsection (j) of section 702 (50 U.S.C. 1881a), as added
by section 101, is amended by inserting after paragraph (3)
the following:
``(4) Relevance and approval to access noncontents
information.--Except as provided under paragraph (5), in
response to a query relating to a United States person or a
person reasonably believed to be located in the United
States, the information of communications acquired under
subsection (a) relating to dialing, routing, addressing, or
signaling information that is not content and could otherwise
be lawfully obtained under title IV of this Act may be
accessed or disseminated only--
``(A) with the approval of the Attorney General;
``(B) if such information is relevant to an authorized
investigation or assessment and is not sought solely on the
basis of activities protected by the First Amendment to the
Constitution of the United States;
``(C) if an order based on probable cause would not be
required by law to obtain such information if requested as
part of an investigation of a Federal crime; and
``(D) if any use of such communications pursuant to section
706 will be carried out in accordance with such section.
``(5) Exceptions.--The requirement for approval of the
Attorney General under paragraph (4)(A) shall not apply to
accessing or disseminating information of communications
acquired under subsection (a) relating to dialing, routing,
addressing, or signaling information that is not content and
could otherwise be lawfully obtained under title IV of this
Act if--
``(A) the Attorney General determines that the person
identified by the queried term is the subject of an order
based upon a finding of probable cause, or emergency
authorization, that authorizes electronic surveillance or
physical search under this Act or title 18, United States
Code (other than such emergency authorizations under title IV
of this Act or section 3125 of title 18, United States Code);
``(B) a supervisory determination is obtained that--
``(i) reasonably determines that an emergency situation
requires the accessing or dissemination of the information of
communications before the approval of the Attorney General
under paragraph (4)(A) can with due diligence be obtained;
``(ii) reasonably believes that the factual basis for the
approval of the Attorney General under paragraph (4)(A)
exists; and
``(iii) with respect to the access or dissemination of such
information of communications--
``(I) informs the Attorney General at the time the
supervisor requires the emergency access or dissemination
that the decision has been made to employ the authority under
this subparagraph; and
``(II) may not use such information of communications
pursuant to section 706 if the Attorney General finds that
the determination by the supervisor with respect to the
emergency situation was not appropriate; or
``(C) there is consent provided in accordance with
paragraph (12).
``(6) Due diligence.--A determination of whether the person
identified by the queried term is a United States person or a
person reasonably believed to be located in the United States
under paragraph (1) or (4) shall be made based on the
totality of the circumstances, including by, to the extent
practicable, ensuring that any conflicting information
regarding whether the person is a United States person or is
reasonably believed to be located outside the United States
is resolved before making such determination. If there is
insufficient information available to make a determination,
the person identified by the queried term shall be considered
a United States person or person reasonably believed to be
located in the United States for purposes of paragraphs (1)
and (4).
``(7) Limitation on electronic surveillance of united
states persons.--If the Attorney General determines that it
is necessary to conduct electronic surveillance on a known
United States person whose communications have been acquired
under subsection (a), the Attorney General may only conduct
such electronic surveillance using authority provided under
other provisions of law.
``(8) Simultaneous query of fbi databases.--Except as
otherwise provided by law or applicable minimization
procedures, the Director of the Federal Bureau of
Investigation shall ensure that all available investigative
or intelligence databases of the Federal Bureau of
Investigation are simultaneously queried when the Federal
Bureau of Investigation properly uses an information system
of the Federal Bureau of Investigation to determine whether
information exists in such a database.
``(9) Delegation.--The Attorney General shall delegate the
authority under this subsection to the fewest number of
officials that the Attorney General determines practicable.
``(10) Retention of auditable records.--
``(A) Records.--The Attorney General shall retain records
of queries of a collection of communications acquired under
subsection (a). The heads of elements of the intelligence
community that are not components of the Department of
Justice shall retain records of queries of a collection of
communications acquired under subsection (a) that use a term
identifying a United States person or a person located in the
United States.
[[Page S192]]
``(B) Requirements.--Records retained under subparagraph
(A) shall--
``(i) include queries for not less than 5 years after the
date on which the query is made; and
``(ii) be maintained in a manner that is auditable and
available for congressional oversight.
``(11) Compliance and maintenance.--The requirements of
this subsection do not apply with respect to queries made for
the purpose of--
``(A) submitting to Congress information required by this
Act or otherwise ensuring compliance with the requirements of
this section; or
``(B) performing maintenance or testing of information
systems.
``(12) Consent.--The requirements of this subsection do not
apply with respect to--
``(A) queries made using a term identifying a person who is
a party to the communications acquired under subsection (a),
or a person who otherwise has lawful authority to provide
consent, and who consents to such queries; or
``(B) the accessing or the dissemination of the contents or
information of communications acquired under subsection (a)
of a person who is a party to the communications, or a person
who otherwise has lawful authority to provide consent, and
who consents to such access or dissemination.
``(13) Query purposes.--The contents of communications
acquired under subsection (a) and the information relating to
the dialing, routing, addressing, or signaling information of
such communications may only be queried if the query is
reasonably designed to return foreign intelligence
information or evidence of a crime.''.
SEC. 103. LIMITATION ON COLLECTION AND IMPROVEMENTS TO
TARGETING PROCEDURES AND MINIMIZATION
PROCEDURES.
(a) Targeting Procedures; Limitation on Collection.--
Section 702(d) (50 U.S.C. 1881a(d)) is amended--
(1) in paragraph (1), by striking ``The Attorney General''
and inserting ``In accordance with paragraphs (3) and (4),
the Attorney General''; and
(2) by adding at the end the following new paragraphs:
``(3) Due diligence.--The procedures adopted in accordance
with paragraph (1) shall require due diligence in determining
whether a person targeted is a non-United States person
reasonably believed to be located outside the United States
by--
``(A) making the determination based on the totality of the
circumstances, including by, to the extent practicable,
ensuring that any conflicting information regarding whether
the person is reasonably believed to be located outside the
United States or is a United States person is resolved before
making such determination;
``(B) documenting the processes used for determinations
described in subparagraph (A); and
``(C) documenting the rationale for why targeting such
person will result in the acquisition of foreign intelligence
information authorized by subsection (a).
``(4) Limitation.--
``(A) In general.--The procedures adopted in accordance
with paragraph (1) shall require that the targeting of a
person is limited to communications to or from the targeted
person.
``(B) Annual report.--On an annual basis, the Attorney
General shall submit to the congressional intelligence
committees and the Committees on the Judiciary of the House
of Representatives and the Senate a report on--
``(i) any difficulty relating to the limitation under
subparagraph (A); and
``(ii) the technical feasibility of ensuring that the
handling of communications acquired under subsection (a) with
respect to incidentally collected United States person
information complies with the minimization procedures adopted
under subsection (e).''.
(b) Minimization Procedures.--Section 702(e) (50 U.S.C.
1881a(e)) is amended--
(1) in paragraph (1), by inserting ``, and the requirements
of this subsection'' before the period at the end; and
(2) by adding at the end the following new paragraph:
``(3) Requests to unmask information.--The procedures
adopted under paragraph (1) shall include specific procedures
adopted by the Attorney General for elements of the
intelligence community to submit requests to unmask
information in disseminated intelligence reports. Such
specific procedures shall--
``(A) require the documentation of the requesting
individual that such request is for legitimate reasons
authorized pursuant to paragraph (1); and
``(B) require the retention of the records of each request,
including--
``(i) a copy of the request;
``(ii) the name and position of the individual who is
making the request; and
``(iii) if the request is approved, the name and position
of the individual who approved the request and the date of
the approval.''.
(c) Unmask Defined.--Section 701(b) (50 U.S.C. 1881(b)) is
amended by adding at the end the following new paragraph:
``(6) Unmask.--The term `unmask' means, with respect to a
disseminated intelligence report containing a reference to a
United States person that does not identify that person
(including by name or title), to disseminate the identity of
the United States person, including the name or title of the
person.''.
(d) Consistent Requirements To Retain Records on Requests
To Unmask Information.--The Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.) is amended as follows:
(1) In section 101(h) (50 U.S.C. 1801(h))--
(A) in paragraph (3), by striking ``; and'' and inserting a
semicolon;
(B) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following new paragraph:
``(5) specific procedures as described in section
702(e)(3).''.
(2) In section 301(4) (50 U.S.C. 1821(4))--
(A) in subparagraph (C), by striking ``; and'' and
inserting a semicolon;
(B) in subparagraph (D), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following new subparagraph:
``(E) specific procedures as described in section
702(e)(3).''.
(3) In section 402(h) (50 U.S.C. 1842(h))--
(A) by redesignating paragraph (2) as paragraph (3); and
(B) by inserting after paragraph (1) the following new
paragraph (2):
``(2) Requests for nonpublicly available information.--The
policies and procedures adopted under paragraph (1) shall
include specific procedures as described in section
702(e)(3).''.
(4) In section 501(g)(2) (50 U.S.C. 1861(g)(2))--
(A) in subparagraph (B), by striking ``; and'' and
inserting a semicolon;
(B) in subparagraph (C), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following new subparagraph:
``(D) specific procedures as described in section
702(e)(3).''.
(e) Report on Unmasking.--Not later than 90 days after the
date of the enactment of this Act, the Director of National
Intelligence shall submit to the Permanent Select Committee
on Intelligence of the House of Representatives, the Select
Committee on Intelligence of the Senate, and the Committees
on the Judiciary of the House of Representatives and the
Senate a report on the progress made by the Director with
respect to--
(1) ensuring that incidentally collected communications of
United States persons (as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801)) are properly masked if masking is necessary; and
(2) implementing procedures for requests to unmask
information under section 702(e)(3) of such Act (50 U.S.C.
1881a(e)(3)), as added by subsection (c).
SEC. 104. PUBLICATION OF MINIMIZATION PROCEDURES UNDER
SECTION 702.
Section 702(e) (50 U.S.C. 1881a(e)), as amended by section
103, is further amended by adding at the end the following:
``(4) Publication.--The Director of National Intelligence,
in consultation with the Attorney General, shall--
``(A) conduct a declassification review of any minimization
procedures adopted or amended in accordance with paragraph
(1); and
``(B) consistent with such review, and not later than 180
days after conducting such review, make such minimization
procedures publicly available to the greatest extent
practicable, which may be in redacted form.''.
SEC. 105. APPOINTMENT OF AMICUS CURIAE FOR ANNUAL
CERTIFICATIONS.
Section 103(i) (50 U.S.C. 1803(i)(2)) is amended--
(1) in paragraph (2)--
(A) in subparagraph (A), by striking ``; and'' and
inserting a semicolon;
(B) by redesignating subparagraph (B) as subparagraph (C);
and
(C) by inserting after subparagraph (A) the following new
subparagraph (B):
``(B) shall appoint an individual who has been designated
under paragraph (1) to serve as amicus curiae to assist such
court in the review of a certification under section 702(i),
unless the court issues a finding that such appointment is
not necessary; and''; and
(2) in paragraphs (4) and (5), by striking ``paragraph
(2)(A)'' both places it appears and inserting ``subparagraph
(A) or (B) of paragraph (2)''.
SEC. 106. INCREASED ACCOUNTABILITY ON INCIDENTALLY COLLECTED
COMMUNICATIONS.
Section 707 (50 U.S.C. 1881f) is amended by adding at the
end the following new subsection:
``(c) Incidentally Collected Communications and Other
Information.--Together with the semiannual report submitted
under subsection (a), the Director of National Intelligence
shall submit to the congressional committees specified in
such subsection a report on incidentally collected
communications and other information regarding United States
persons under section 702. Each such report shall include,
with respect to the 6-month period covered by the report, the
following:
``(1) Except as provided by paragraph (2), the number, or a
good faith estimate, of communications of United States
persons acquired under subsection (a) of such section,
including a description of any efforts of the intelligence
community to ascertain such number or good faith estimate.
[[Page S193]]
``(2) If the Director determines that the number, or a good
faith estimate, under paragraph (1) is not achievable, a
detailed explanation for why such number or good faith
estimate is not achievable.
``(3) The number of--
``(A) United States persons whose information is unmasked
pursuant to the procedures adopted under subsection (e)(3) of
such section;
``(B) requests made by an element of the intelligence
community, listed by each such element, to unmask information
pursuant to such subsection; and
``(C) requests that resulted in the dissemination of names,
titles, or other identifiers potentially associated with
individuals pursuant to such subsection, including the
element of the intelligence community and position of the
individual making the request.
``(4) The number of disseminations of communications
acquired under subsection (a) of section 702 to the Federal
Bureau of Investigation for cases unrelated to foreign
intelligence.
``(5) The number of instances in which evidence of a crime
unrelated to foreign intelligence that was identified in
communications acquired under subsection (a) of section 702
was disseminated from the national security branch of the
Bureau to the criminal investigative division of the Bureau
(or from such successor branch to such successor division).
``(6) The number of individuals to whom the Attorney
General has delegated authority pursuant to subsection
(j)(2)(G) of section 702.''.
SEC. 107. SEMIANNUAL REPORTS ON CERTAIN QUERIES BY FEDERAL
BUREAU OF INVESTIGATION.
Section 707 (50 U.S.C. 1881f), as amended by section 106,
is further amended by adding at the end the following new
subsection:
``(d) Semiannual FBI Reports.--Together with the semiannual
report submitted under subsection (a), the Director of the
Federal Bureau of Investigation shall submit to the
congressional committees specified in such subsection, and
make publicly available, a report containing, with respect to
the period covered by the report--
``(1) the number of applications made by the Federal Bureau
of Investigation described in subsection (j)(1)(A) of section
702;
``(2) the number of such applications that were approved
and resulted in the contents of communications being accessed
or disseminated pursuant to such subsection; and
``(3) the number of Attorney General approvals made
pursuant to subsection (j)(4)(A) of such section.''.
SEC. 108. ADDITIONAL REPORTING REQUIREMENTS.
(a) Electronic Surveillance.--Section 107 (50 U.S.C. 1807)
is amended to read as follows:
``SEC. 107. REPORT OF ELECTRONIC SURVEILLANCE.
``(a) Annual Report.--In April of each year, the Attorney
General shall transmit to the Administrative Office of the
United States Courts and to Congress a report setting forth
with respect to the preceding calendar year--
``(1) the total number of applications made for orders and
extensions of orders approving electronic surveillance under
this title;
``(2) the total number of such orders and extensions either
granted, modified, or denied; and
``(3) the total number of persons who were subject to
electronic surveillance conducted under an order or emergency
authorization under this title, rounded to the nearest 500,
including the number of such individuals who are United
States persons, reported to the nearest band of 500, starting
with 0-499.
``(b) Form.--Each report under subsection (a) shall be
submitted in unclassified form. Not later than 7 days after
the date on which the Attorney General submits each such
report, the Attorney General shall make the report publicly
available.''.
(b) Pen Registers and Trap and Trace Devices.--Section 406
(50 U.S.C. 1846) is amended--
(1) in subsection (b)--
(A) in paragraph (4), by striking ``; and'' and inserting a
semicolon;
(B) in paragraph (5), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following new paragraph:
``(6) a good faith estimate of the total number of subjects
who were targeted by the installation and use of a pen
register or trap and trace device under an order or emergency
authorization issued under this title, rounded to the nearest
500, including--
``(A) the number of such subjects who are United States
persons, reported to the nearest band of 500, starting with
0-499; and
``(B) of the number of United States persons described in
subparagraph (A), the number of persons whose information
acquired pursuant to such order was reviewed or accessed by a
Federal officer, employee, or agent, reported to the nearest
band of 500, starting with 0-499.''; and
(2) by adding at the end the following new subsection:
``(c) Each report under subsection (b) shall be submitted
in unclassified form. Not later than 7 days after the date on
which the Attorney General submits such a report, the
Attorney General shall make such report publicly
available.''.
SEC. 109. APPLICATION OF CERTAIN AMENDMENTS.
The amendments made by sections 101, 102, and 103 of this
Act shall apply with respect to applications, certifications,
and procedures submitted to the Foreign Intelligence
Surveillance Court on or after the date that is 120 days
after the date of the enactment of this Act.
SEC. 110. SENSE OF CONGRESS ON PURPOSE OF SECTION 702 AND
RESPECTING FOREIGN NATIONALS.
It is the sense of Congress that--
(1) the acquisition of communications by the National
Security Agency under section 702 of the Foreign Intelligence
Surveillance Act (50 U.S.C. 1881a) should be conducted within
the bounds of treaties and agreements to which the United
States is a party, and there should be no targeting of non-
United States persons for any unfounded discriminatory
purpose or for the purpose of affording a commercial
competitive advantage to companies and business sectors of
the United States; and
(2) the authority to collect intelligence under such
section 702 is meant to shield the United States, and by
extension, the allies of the United States, from security
threats.
TITLE II--SAFEGUARDS AND OVERSIGHT OF PRIVACY AND CIVIL LIBERTIES
SEC. 201. LIMITATION ON RETENTION OF CERTAIN DATA.
Subsection (m) of section 702 (50 U.S.C. 1881a), as
redesignated by section 101, is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4); and
(2) by inserting after paragraph (1) the following new
paragraph (2):
``(2) Affidavit on deletion included in semiannual
assessment to fisc and congress.--Each semiannual assessment
under paragraph (1) shall include, with respect to the 6-
month period covered by the assessment, an affidavit by the
Director of the National Security Agency, without delegation,
that communications acquired under subsection (a) determined
not to contain foreign intelligence information, if any, were
deleted.''.
SEC. 202. IMPROVEMENTS TO PRIVACY AND CIVIL LIBERTIES
OVERSIGHT BOARD.
(a) Appointment of Staff.--Subsection (j) of section 1061
of the Intelligence Reform and Terrorism Prevention Act of
2004 (42 U.S.C. 2000ee(j)) is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively; and
(2) by inserting after paragraph (1) the following new
paragraph:
``(2) Appointment in absence of chairman.--If the position
of chairman of the Board is vacant, during the period of the
vacancy, the Board, at the direction of the unanimous vote of
the serving members of the Board, may exercise the authority
of the chairman under paragraph (1).''.
(b) Meetings.--Subsection (f) of such section (42 U.S.C.
2000ee(f)) is amended--
(1) by striking ``The Board shall'' and inserting ``The
Board'';
(2) in paragraph (1) by striking ``make its'' and inserting
``shall make its''; and
(3) in paragraph (2)--
(A) by striking ``hold public'' and inserting ``shall hold
public''; and
(B) by inserting before the period at the end the
following: ``, but may, notwithstanding section 552b of title
5, United States Code, meet or otherwise communicate in any
number to confer or deliberate in a manner that is closed to
the public''.
(c) Report on Section 702 and Terrorism.--Not later than 1
year after the date on which the Privacy and Civil Liberties
Oversight Board first achieves a quorum following the date of
the enactment of this Act, the Board shall submit to the
Committee on the Judiciary and the Permanent Select Committee
on Intelligence of the House of Representatives and the
Committee on the Judiciary and the Select Committee on
Intelligence of the Senate a report assessing--
(1) how communications acquired under section 702 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1881a) are used by the United States to prevent or defend
against terrorism;
(2) whether technological challenges and changes in
technology affect the prevention of and defense against
terrorism, and how effectively the foreign intelligence
elements of the intelligence community (as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C.
3003(4))) have responded to those challenges; and
(3) how privacy and civil liberties are affected by the
actions identified under paragraph (1) and the changes in
technology identified under paragraph (2), and whether race,
religion, political affiliation, or activities protected by
the First Amendment to the Constitution of the United States
are determinative in the targeting or querying decisions made
pursuant to such section 702.
SEC. 203. PRIVACY AND CIVIL LIBERTIES OFFICERS.
(a) Codification of Certain Officers.--Section 1062(a) of
the Intelligence Reform and Terrorism Prevention Act of 2004
(42 U.S.C. 2000ee-1(a)) is amended in the matter preceding
paragraph (1) by inserting ``, the Director of the National
Security Agency, the Director of the Federal Bureau of
Investigation'' after ``the Director of the Central
Intelligence Agency''.
(b) Annual Reports on Incidental Communications of United
States Persons.--Paragraph (4)(A) of subsection (m) of
section 702 (50 U.S.C. 1881a), as redesignated by sections
101 and 201, is amended--
(1) in clause (iii), by striking ``; and'' and inserting a
semicolon;
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(2) in clause (iv), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following new clause:
``(v) a review by the privacy and civil liberties officer
of the element of incidentally collected communications of
United States persons to assess compliance with the
minimization procedures adopted under subsection (e) and the
effect of this section on the privacy of United States
persons.''.
SEC. 204. WHISTLEBLOWER PROTECTIONS FOR CONTRACTORS OF THE
INTELLIGENCE COMMUNITY.
(a) Prohibited Personnel Practices in the Intelligence
Community.--Section 1104 of the National Security Act of 1947
(50 U.S.C. 3234) is amended--
(1) in subsection (a)--
(A) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively;
(B) by inserting after paragraph (1) the following:
``(2) Contractor employee.--The term `contractor employee'
means an employee of a contractor, subcontractor, grantee,
subgrantee, or personal services contractor of a covered
intelligence community element.''; and
(C) in paragraph (4), as so redesignated, in the matter
preceding subparagraph (A) by inserting ``or a contractor
employee of a covered intelligence community element'' after
``character)'';
(2) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively;
(3) by inserting after subsection (b) the following new
subsection (c):
``(c) Contractor Employees.--(1) A contractor employee or
employee of a covered intelligence community element who has
authority to take, direct others to take, recommend, or
approve any personnel action, shall not, with respect to such
authority, take or fail to take a personnel action with
respect to any contractor employee as a reprisal for a lawful
disclosure of information by the contractor employee to the
Director of National Intelligence (or an employee designated
by the Director of National Intelligence for such purpose),
the Inspector General of the Intelligence Community, the head
of the contracting agency (or an employee designated by the
head of that agency for such purpose), the appropriate
inspector general of the contracting agency, a congressional
intelligence committee, or a member of a congressional
intelligence committee, which the contractor employee
reasonably believes evidences--
``(A) a violation of any Federal law, rule, or regulation
(including with respect to evidence of another employee or
contractor employee accessing or sharing classified
information without authorization); or
``(B) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety.
``(2) A personnel action under paragraph (1) is prohibited
even if the action is undertaken at the request of an officer
or employee of the applicable covered intelligence community
element, unless the request takes the form of a
nondiscretionary directive and is within the authority of the
officer or employee making the request.
``(3) A contractor employee may raise a violation of
paragraph (1) in any proceeding to implement or challenge a
personnel action described in such paragraph.'';
(4) in subsection (b), by striking the heading and
inserting ``Agency Employees.--''; and
(5) in subsection (e)(1), as redesignated by paragraph (2),
by inserting ``contractor employee,'' after ``any
employee,''.
(b) Federal Bureau of Investigation.--
(1) In general.--Any contractor employee or employee of the
Federal Bureau of Investigation who has authority to take,
direct others to take, recommend, or approve any personnel
action, shall not, with respect to such authority, take or
fail to take a personnel action with respect to a contractor
employee as a reprisal for a disclosure of information--
(A) made--
(i) to a supervisor in the direct chain of command of the
contractor employee, up to and including the Director of the
Federal Bureau of Investigation;
(ii) to the Inspector General of the Department of Justice;
(iii) to the Office of Professional Responsibility of the
Department of Justice;
(iv) to the Office of Professional Responsibility of the
Federal Bureau of Investigation;
(v) to the Inspection Division of the Federal Bureau of
Investigation;
(vi) as described in section 7211 of title 5, United States
Code;
(vii) to the Office of Special Counsel; or
(viii) to an employee designated by any officer, employee,
office, or division described in clauses (i) through (vii)
for the purpose of receiving such disclosures; and
(B) which the contractor employee reasonably believes
evidences--
(i) any violation of any law, rule, or regulation
(including with respect to evidence of another employee or
contractor employee accessing or sharing classified
information without authorization); or
(ii) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety.
(2) Actions by request.--A personnel action under paragraph
(1) is prohibited even if the action is undertaken at the
request of an officer or employee of the Federal Bureau of
Investigation, unless the request takes the form of a
nondiscretionary directive and is within the authority of the
officer or employee making the request.
(3) Violation.--A contractor employee may raise a violation
of paragraph (1) in any proceeding to implement or challenge
a personnel action described in such paragraph.
(4) Regulations.--The Attorney General shall prescribe
regulations to ensure that a personnel action described in
paragraph (1) shall not be taken against a contractor
employee of the Bureau as a reprisal for any disclosure of
information described in such paragraph.
(5) Enforcement.--The President shall provide for the
enforcement of this subsection in a manner consistent with
applicable provisions of sections 1214 and 1221 of title 5,
United States Code.
(6) Definitions.--In this subsection:
(A) The term ``contractor employee'' means an employee of a
contractor, subcontractor, grantee, subgrantee, or personal
services contractor, of the Federal Bureau of Investigation.
(B) The term ``personnel action'' means any action
described in clauses (i) through (x) of section 2302(a)(2)(A)
of title 5, United States Code, with respect to a contractor
employee.
(c) Retaliatory Revocation of Security Clearances and
Access Determinations.--Section 3001(j) of the Intelligence
Reform and Terrorism Prevention Act of 2004 (50 U.S.C.
3341(j)) is amended by adding at the end the following new
paragraph:
``(8) Inclusion of contractor employees.--In this
subsection, the term `employee' includes an employee of a
contractor, subcontractor, grantee, subgrantee, or personal
services contractor, of an agency. With respect to such
employees, the term `employing agency' shall be deemed to be
the contracting agency.''.
TITLE III--EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND
OTHER MATTERS
SEC. 301. EXTENSION OF TITLE VII OF FISA; EFFECTIVE DATES.
(a) Extension.--Section 403(b) of the FISA Amendments Act
of 2008 (Public Law 110-261; 122 Stat. 2474) is amended--
(1) in paragraph (1)--
(A) by striking ``December 31, 2017'' and inserting
``September 30, 2023''; and
(B) by inserting ``and by the USA Liberty Act of 2017''
after ``section 101(a)''; and
(2) in paragraph (2) in the matter preceding subparagraph
(A), by striking ``December 31, 2017'' and inserting
``September 30, 2023''.
(b) Conforming Amendments.--Section 404(b) of the FISA
Amendments Act of 2008 (Public Law 110-261; 122 Stat. 2476)
is amended--
(1) in paragraph (1)--
(A) in the heading, by striking ``December 31, 2017'' and
inserting ``September 30, 2023''; and
(B) by inserting ``and by the USA Liberty Act of 2017''
after ``section 101(a)'';
(2) in paragraph (2), by inserting ``and by the USA Liberty
Act of 2017'' after ``section 101(a)''; and
(3) in paragraph (4)--
(A) by inserting ``and amended by the USA Liberty Act of
2017'' after ``as added by section 101(a)'' both places it
appears; and
(B) by inserting ``and by the USA Liberty Act of 2017''
after ``as amended by section 101(a)'' both places it
appears.
(c) Effective Date of Amendments to FAA.--The amendments
made to the FISA Amendments Act of 2008 (Public Law 110-261)
by this section shall take effect on the earlier of the date
of the enactment of this Act or December 31, 2017.
SEC. 302. INCREASED PENALTY FOR UNAUTHORIZED REMOVAL AND
RETENTION OF CLASSIFIED DOCUMENTS OR MATERIAL.
Section 1924(a) of title 18, United States Code, is amended
by striking ``one year'' and inserting ``5 years''.
SEC. 303. RULE OF CONSTRUCTION REGARDING CRIMINAL PENALTIES
FOR UNAUTHORIZED USE OF INFORMATION ACQUIRED
UNDER SECTION 702 AND UNAUTHORIZED DISCLOSURE
OF UNITED STATES PERSON INFORMATION.
Nothing in this Act or the amendments made by this Act may
be construed to limit the application or effect of criminal
penalties under section 552a(i) of title 5, United States
Code, sections 1001, 1030, and 1924 of title 18, United
States Code, or any other relevant provision of law, with
respect to offenses relating to the unauthorized access or
use of information acquired under section 702 of the Foreign
Intelligence Surveillance Act (50 U.S.C. 1881a) or the
unauthorized disclosure of United States person information
acquired under such section.
SEC. 304. COMPTROLLER GENERAL STUDY ON UNAUTHORIZED
DISCLOSURES AND THE CLASSIFICATION SYSTEM.
(a) Study.--The Comptroller General of the United States
shall conduct a study of the unauthorized disclosure of
classified information and the classification system of the
United States.
(b) Matters Included.--The study under subsection (a) shall
address the following:
(1) Insider threat risks to the unauthorized disclosure of
classified information.
(2) The effect of modern technology on the unauthorized
disclosure of classified information, including with respect
to--
(A) using cloud storage for classified information; and
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(B) any technological means to prevent or detect such
unauthorized disclosure.
(3) The effect of overclassification on the unauthorized
disclosure of classified information.
(4) Any ways to improve the classification system of the
United States, including with respect to changing the levels
of classification used in such system and to reduce
overclassification.
(5) How to improve the authorized sharing of classified
information, including with respect to sensitive
compartmented information.
(6) The value of polygraph tests in determining who is
authorized to access classified information.
(7) Whether each element of the intelligence community (as
defined in section 3(4) of the National Security Act of 1947
(50 U.S.C. 3003(4)))--
(A) applies uniform standards in determining who is
authorized to access classified information; and
(B) provides proper training with respect to the handling
of classified information and the avoidance of
overclassification.
(c) Cooperation.--The heads of the intelligence community
shall provide to the Comptroller General information the
Comptroller General determines necessary to carry out the
study under subsection (a).
(d) Report.--Not later than 180 days after the date of the
enactment of this Act, the Comptroller General shall submit
to the Committee on the Judiciary and the Permanent Select
Committee on Intelligence of the House of Representatives and
the Committee on the Judiciary and the Select Committee on
Intelligence of the Senate a report containing the study
under subsection (a).
(e) Form.--The report under subsection (d) shall be
submitted in unclassified form, but may include a classified
annex.
SEC. 305. SENSE OF CONGRESS ON INFORMATION SHARING AMONG
INTELLIGENCE COMMUNITY TO PROTECT NATIONAL
SECURITY.
It is the sense of Congress that, in carrying out section
702 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1881a), as amended by this Act, the United States
Government should ensure that the barriers, whether real or
perceived, to sharing critical foreign intelligence among the
intelligence community that existed before September 11,
2001, are not reimposed by sharing information vital to
national security among the intelligence community in a
manner that is consistent with such section, applicable
provisions of law, and the Constitution of the United States.
SEC. 306. SENSE OF CONGRESS ON COMBATING TERRORISM.
It is the sense of Congress that, consistent with the
protection of sources and methods, when lawful and
appropriate, the President should share information learned
by acquiring communications under section 702 of the Foreign
Intelligence Surveillance Act (50 U.S.C. 1881a) with allies
of the United States to prevent and defend against terrorism.
SEC. 307. TECHNICAL AMENDMENTS AND AMENDMENTS TO IMPROVE
PROCEDURES OF THE FOREIGN INTELLIGENCE
SURVEILLANCE COURT OF REVIEW.
(a) Technical Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended
as follows:
(1) In section 103(b) (50 U.S.C. 1803(b)), by striking
``designate as the'' and inserting ``designated as the''.
(2) In section 302(a)(1)(A)(iii) (50 U.S.C.
1822(a)(1)(A)(iii)), by striking ``paragraphs (1) through
(4)'' and inserting ``subparagraphs (A) through (D)''.
(3) In section 406(b) (50 U.S.C. 1846(b)), by striking
``and to the Committees on the Judiciary of the House of
Representatives and the Senate''.
(4) In section 604(a) (50 U.S.C. 1874(a))--
(A) in paragraph (1)(D), by striking ``contents'' and
inserting ``contents,''; and
(B) in paragraph (3), by striking ``comply in the into''
and inserting ``comply into''.
(5) In section 701 (50 U.S.C. 1881)--
(A) in subsection (a), by striking ``The terms'' and
inserting ``In this title, the terms''; and
(B) in subsection (b)--
(i) by inserting ``In this title:'' after the subsection
heading; and
(ii) in paragraph (5), by striking ``(50 U.S.C. 401a(4))''
and inserting ``(50 U.S.C. 3003(4))''.
(6) In section 702(g)(2)(A)(i) (50 U.S.C.
1881a(g)(2)(A)(i)), by inserting ``targeting'' before
``procedures in place''.
(7) In section 801(7) (50 U.S.C. 1885(7)), by striking
``(50 U.S.C. 401a(4))'' and inserting ``(50 U.S.C.
3003(4))''.
(b) Court-Related Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is further
amended as follows:
(1) In section 103 (50 U.S.C. 1803)--
(A) in subsection (b), by striking ``immediately''; and
(B) in subsection (h), by striking ``the court established
under subsection (a)'' and inserting ``a court established
under this section''.
(2) In section 105(d) (50 U.S.C. 1805(d)), by adding at the
end the following new paragraph:
``(4) A denial of the application made under section 104
may be reviewed as provided in section 103.''.
(3) In section 302(d) (50 U.S.C. 1822(d)), by striking
``immediately''.
(4) In section 402(d) (50 U.S.C. 1842(d)), by adding at the
end the following new paragraph:
``(3) A denial of the application made under this
subsection may be reviewed as provided in section 103.''.
(5) In section 403(c) (50 U.S.C. 1843(c)), by adding at the
end the following new paragraph:
``(3) A denial of the application made under subsection
(a)(2) may be reviewed as provided in section 103.''.
(6) In section 501(c) (50 U.S.C. 1861(c)), by adding at the
end the following new paragraph:
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.''.
SEC. 308. SEVERABILITY.
If any provision of this Act, any amendment made by this
Act, or the application thereof to any person or
circumstances is held invalid, the validity of the remainder
of the Act, of any such amendments, and of the application of
such provisions to other persons and circumstances shall not
be affected thereby.
SEC. 309. RULE OF CONSTRUCTION.
Nothing in this Act or the amendments made by this Act
shall be construed to authorize the acquisition, querying,
retention, dissemination, or use of information not
previously authorized under the FISA Amendments Act of 2008
or the amendments made by that Act.
______