[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[Senate]
[Pages S5735-S5737]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 6214. Mr. LEAHY (for himself, Mr. Lee, Ms. Baldwin, Mr. 
Blumenthal, Mr. Cramer, Ms. Hirono, Mr. Markey, and Mr. Wyden) 
submitted an amendment intended to be proposed to amendment SA 5499 
submitted by Mr. Reed (for himself and Mr. Inhofe) and intended to be 
proposed to the bill H.R. 7900, to authorize appropriations for fiscal 
year 2023 for military activities of the Department of Defense, for 
military construction, and for defense activities of the Department of 
Energy, to prescribe military personnel strengths for such fiscal year, 
and for other purposes; which was ordered to lie on the table; as 
follows:

            Subtitle H--FISA Amici Curiae Reform Act of 2022

     SEC. 1081. SHORT TITLE.

       This subtitle may be cited as the ``FISA Amici Curiae 
     Reform Act of 2022''.

     SEC. 1082. AMENDMENTS TO THE FOREIGN INTELLIGENCE 
                   SURVEILLANCE ACT OF 1978.

       Except as otherwise expressly provided, whenever in this 
     subtitle 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.).

     SEC. 1083. APPOINTMENT OF AMICI CURIAE AND ACCESS TO 
                   INFORMATION.

       (a) Expansion of Appointment Authority.--
       (1) In general.--Section 103(i)(2) (50 U.S.C. 1803(i)(2)) 
     is amended--
       (A) by striking subparagraph (A) and inserting the 
     following:
       ``(A) shall appoint 1 or more individuals who have been 
     designated under paragraph (1), not fewer than 1 of whom 
     possesses privacy and civil liberties expertise, unless the 
     court finds that such a qualification is inappropriate, to 
     serve as amicus curiae to assist the court in the 
     consideration of any application or motion for an order or 
     review that, in the opinion of the court--
       ``(i) presents a novel or significant interpretation of the 
     law, unless the court issues a finding that such appointment 
     is not appropriate;
       ``(ii) presents significant concerns with respect to the 
     activities of a United States person that are protected by 
     the first amendment to the Constitution of the United States, 
     unless the court issues a finding that such appointment is 
     not appropriate;
       ``(iii) presents or involves a sensitive investigative 
     matter, unless the court issues a finding that such 
     appointment is not appropriate;
       ``(iv) presents a request for approval of a new program, a 
     new technology, or a new use of existing technology, unless 
     the court issues a finding that such appointment is not 
     appropriate;
       ``(v) presents a request for reauthorization of 
     programmatic surveillance, unless the court issues a finding 
     that such appointment is not appropriate; or
       ``(vi) otherwise presents novel or significant civil 
     liberties issues, unless the court issues a finding that such 
     appointment is not appropriate; and''; and
       (B) in subparagraph (B), by striking ``an individual or 
     organization'' each place the term appears and inserting ``1 
     or more individuals or organizations''.
       (2) Definition of sensitive investigative matter.--Section 
     103(i) (50 U.S.C. 1803(i)) is amended by adding at the end 
     the following:
       ``(12) Definition.--In this subsection, the term `sensitive 
     investigative matter' means--
       ``(A) an investigative matter involving the activities of--
       ``(i) a domestic public official or political candidate, or 
     an individual serving on the staff of such an official or 
     candidate;
       ``(ii) a domestic religious or political organization, or a 
     known or suspected United States person prominent in such an 
     organization; or
       ``(iii) the domestic news media; or
       ``(B) any other investigative matter involving a domestic 
     entity or a known or suspected United States person that, in 
     the judgment of the applicable court established under 
     subsection (a) or (b), is as sensitive as an investigative 
     matter described in subparagraph (A).''.
       (b) Authority To Seek Review.--Section 103(i) (50 U.S.C. 
     1803(i)), as amended by subsection (a) of this section, is 
     amended--
       (1) in paragraph (4)--
       (A) in the paragraph heading, by inserting ``; authority'' 
     after ``Duties'';
       (B) by redesignating subparagraphs (A), (B), and (C) as 
     clauses (i), (ii), and (iii), respectively, and adjusting the 
     margins accordingly;
       (C) in the matter preceding clause (i), as so designated, 
     by striking ``the amicus curiae shall'' and inserting the 
     following: ``the amicus curiae--
       ``(A) shall'';
       (D) in subparagraph (A)(i), as so designated, by inserting 
     before the semicolon at the end the following: ``, including 
     legal arguments regarding any privacy or civil liberties 
     interest of any United States person that would be 
     significantly impacted by the application or motion''; and
       (E) by striking the period at the end and inserting the 
     following: ``; and
       ``(B) may seek leave to raise any novel or significant 
     privacy or civil liberties issue relevant to the application 
     or motion or other issue directly impacting the legality of 
     the proposed electronic surveillance with the court, 
     regardless of whether the court has requested assistance on 
     that issue.'';
       (2) by redesignating paragraphs (7) through (12) as 
     paragraphs (8) through (13), respectively; and
       (3) by inserting after paragraph (6) the following:
       ``(7) Authority to seek review of decisions.--
       ``(A) FISA court decisions.--
       ``(i) Petition.--Following issuance of an order under this 
     Act by the Foreign Intelligence Surveillance Court, an amicus 
     curiae appointed under paragraph (2) may petition the Foreign 
     Intelligence Surveillance Court to certify for review to the 
     Foreign Intelligence Surveillance Court of Review a question 
     of law pursuant to subsection (j).
       ``(ii) Written statement of reasons.--If the Foreign 
     Intelligence Surveillance Court denies a petition under this 
     subparagraph, the Foreign Intelligence Surveillance Court 
     shall provide for the record a written statement of the 
     reasons for the denial.
       ``(iii) Appointment.--Upon certification of any question of 
     law pursuant to this subparagraph, the Court of Review shall 
     appoint the amicus curiae to assist the Court of Review in 
     its consideration of the certified question, unless the Court 
     of Review issues a finding that such appointment is not 
     appropriate.
       ``(B) FISA court of review decisions.--An amicus curiae 
     appointed under paragraph (2) may petition the Foreign 
     Intelligence Surveillance Court of Review to certify for 
     review to the Supreme Court of the United States any question 
     of law pursuant to section 1254(2) of title 28, United States 
     Code.
       ``(C) Declassification of referrals.--For purposes of 
     section 602, a petition filed under subparagraph (A) or (B) 
     of this paragraph and all of its content shall be considered 
     a decision, order, or opinion issued by the Foreign 
     Intelligence Surveillance Court or the Foreign Intelligence 
     Surveillance Court of Review described in paragraph (2) of 
     section 602(a).''.
       (c) Access to Information.--
       (1) Application and materials.--Section 103(i)(6) (50 
     U.S.C. 1803(i)(6)) is amended by striking subparagraph (A) 
     and inserting the following:
       ``(A) In general.--
       ``(i) Right of amicus.--If a court established under 
     subsection (a) or (b) appoints an amicus curiae under 
     paragraph (2), the amicus curiae--

       ``(I) shall have access, to the extent such information is 
     available to the Government, to--

       ``(aa) the application, certification, petition, motion, 
     and other information and supporting materials, including any 
     information described in section 901, submitted to the

[[Page S5736]]

     Foreign Intelligence Surveillance Court in connection with 
     the matter in which the amicus curiae has been appointed, 
     including access to any relevant legal precedent (including 
     any such precedent that is cited by the Government, including 
     in such an application);
       ``(bb) an unredacted copy of each relevant decision made by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review in which the court 
     decides a question of law, without regard to whether the 
     decision is classified; and
       ``(cc) any other information or materials that the court 
     determines are relevant to the duties of the amicus curiae; 
     and

       ``(II) may make a submission to the court requesting access 
     to any other particular materials or information (or category 
     of materials or information) that the amicus curiae believes 
     to be relevant to the duties of the amicus curiae.

       ``(ii) Supporting documentation regarding accuracy.--The 
     Foreign Intelligence Surveillance Court, upon the motion of 
     an amicus curiae appointed under paragraph (2) or upon its 
     own motion, may require the Government to make available the 
     supporting documentation described in section 902.''.
       (2) Clarification of access to certain information.--
     Section 103(i)(6) (50 U.S.C. 1803(i)(6)) is amended--
       (A) in subparagraph (B), by striking ``may'' and inserting 
     ``shall''; and
       (B) by striking subparagraph (C) and inserting the 
     following:
       ``(C) Classified information.--An amicus curiae designated 
     or appointed by the court shall have access, to the extent 
     such information is available to the Government, to 
     unredacted copies of each opinion, order, transcript, 
     pleading, or other document of the Foreign Intelligence 
     Surveillance Court and the Foreign Intelligence Surveillance 
     Court of Review, including, if the individual is eligible for 
     access to classified information, any classified documents, 
     information, and other materials or proceedings.''.
       (d) Effective Date.--The amendments made by this section 
     shall take effect on the date of enactment of this Act and 
     shall apply with respect to proceedings under the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) that take place on or after, or are pending on, that 
     date.

     SEC. 1084. DECLASSIFICATION OF SIGNIFICANT DECISIONS, ORDERS, 
                   AND OPINIONS.

       (a) Matters Covered.--Section 602 (50 U.S.C. 1872) is 
     amended--
       (1) by striking ``Subject to subsection (b)'' and inserting 
     ``(1) Subject to subsection (b)'';
       (2) by striking ``includes a significant'' and all that 
     follows through ``, and,'' and inserting ``is described in 
     paragraph (2) and,''; and
       (3) by adding at the end the following:
       ``(2) The decisions, orders, or opinions issued by the 
     Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review described in this 
     paragraph are such decisions, orders, or opinions that--
       ``(A) include a significant construction or interpretation 
     of any provision of law, including any novel or significant 
     construction or interpretation of the term `specific 
     selection term'; or
       ``(B) result from--
       ``(i) a proceeding in which an amicus curiae has been 
     appointed pursuant to section 103(i);
       ``(ii) a proceeding in the Foreign Intelligence Court of 
     Review resulting from the petition of an amicus curiae under 
     section 103(i)(7); or
       ``(iii) a proceeding in which an amicus curiae could have 
     been appointed pursuant to section 103(i)(2)(A).''.
       (b) Application of Requirement.--
       (1) In general.--Section 602 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1872), as amended by this 
     section, shall apply with respect to each decision, order, or 
     opinion issued by the Foreign Intelligence Surveillance Court 
     or the Foreign Intelligence Surveillance Court of Review 
     before, on, or after the date of enactment of that section.
       (2) Past decisions, orders, and opinions.--With respect to 
     each decision, order, or opinion described in paragraph (1) 
     that was issued before or on the date of enactment referred 
     to in that paragraph, the Director of National Intelligence 
     shall complete the declassification review and public release 
     of the decision, order, or opinion pursuant to section 602 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1872) by not later than 1 year after the date of enactment of 
     this Act.

     SEC. 1085. DISCLOSURE OF RELEVANT INFORMATION; CERTIFICATION 
                   REGARDING ACCURACY PROCEDURES.

       (a) Disclosure of Relevant Information.--
       (1) In general.--The Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the 
     end the following:

             ``TITLE IX--DISCLOSURE OF RELEVANT INFORMATION

     ``SEC. 901. DISCLOSURE OF RELEVANT INFORMATION.

       ``The Attorney General or any other Federal officer making 
     an application for a court order under this Act shall provide 
     the court with--
       ``(1) all information in the possession of the Government 
     that is material to determining whether the application 
     satisfies the applicable requirements under this Act, 
     including any exculpatory information; and
       ``(2) all information in the possession of the Government 
     that might reasonably--
       ``(A) call into question the accuracy of the application or 
     the reasonableness of any assessment in the application 
     conducted by the department or agency on whose behalf the 
     application is made; or
       ``(B) otherwise raise doubts with respect to the findings 
     that are required to be made under the applicable provision 
     of this Act in order for the court order to be issued.''.
       (2) Technical amendment.--The table of contents of the 
     Foreign Intelligence Surveillance Act of 1978 is amended by 
     adding at the end the following:

             ``TITLE IX--DISCLOSURE OF RELEVANT INFORMATION

``Sec. 901. Disclosure of relevant information.''.
       (b) Certification Regarding Accuracy Procedures.--
       (1) In general.--Title IX of the Foreign Intelligence 
     Surveillance Act of 1978, as added by subsection (a), is 
     amended by adding at the end the following:

     ``SEC. 902. CERTIFICATION REGARDING ACCURACY PROCEDURES.

       ``(a) Definition.--In this section, the term `accuracy 
     procedures' means specific procedures, adopted by the 
     Attorney General, to ensure that an application for a court 
     order under this Act, including any application for renewal 
     of an existing order, is accurate and complete, including 
     procedures that ensure, at a minimum, that--
       ``(1) the application reflects all information that might 
     reasonably call into question the accuracy of the information 
     or the reasonableness of any assessment in the application, 
     or otherwise raises doubts about the requested findings;
       ``(2) the application reflects all material information 
     that might reasonably call into question the reliability and 
     reporting of any information from a confidential human source 
     that is used in the application;
       ``(3) a complete file documenting each factual assertion in 
     an application is maintained;
       ``(4) the applicant coordinates with the appropriate 
     elements of the intelligence community (as defined in section 
     3 of the National Security Act of 1947 (50 U.S.C. 3003)), 
     concerning any prior or existing relationship with the target 
     of any surveillance, search, or other means of investigation, 
     and discloses any such relationship in the application;
       ``(5) before any application targeting a United States 
     person is made, the applicant Federal officer shall document 
     that the officer has collected and reviewed for accuracy and 
     completeness supporting documentation for each factual 
     assertion in the application; and
       ``(6) the applicant Federal agency establish compliance and 
     auditing mechanisms on an annual basis to assess the efficacy 
     of the accuracy procedures that have been adopted and report 
     such findings to the Attorney General.
       ``(b) Statement and Certification of Accuracy Procedures.--
     Any Federal officer making an application for a court order 
     under this Act shall include with the application--
       ``(1) a description of the accuracy procedures employed by 
     the officer or the officer's designee; and
       ``(2) a certification that the officer or the officer's 
     designee has collected and reviewed for accuracy and 
     completeness--
       ``(A) supporting documentation for each factual assertion 
     contained in the application;
       ``(B) all information that might reasonably call into 
     question the accuracy of the information or the 
     reasonableness of any assessment in the application, or 
     otherwise raises doubts about the requested findings; and
       ``(C) all material information that might reasonably call 
     into question the reliability and reporting of any 
     information from any confidential human source that is used 
     in the application.
       ``(c) Necessary Finding for Court Orders.--A judge may not 
     enter an order under this Act unless the judge finds, in 
     addition to any other findings required under this Act, that 
     the accuracy procedures described in the application for the 
     order, as required under subsection (b)(1), are actually 
     accuracy procedures as defined in this section.''.
       (2) Technical amendment.--The table of contents of the 
     Foreign Intelligence Surveillance Act of 1978, as amended by 
     subsection (a), is amended by inserting after the item 
     relating to section 901 the following:

``Sec. 902. Certification regarding accuracy procedures.''.
       (c) Effective Date.--The amendments made by this section 
     shall take effect on the date of enactment of this Act and 
     shall apply with respect to applications under the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) that are made on or after, or are pending on, that 
     date.

     SEC. 1086. ANNUAL REPORTING ON ACCURACY AND COMPLETENESS OF 
                   APPLICATIONS.

       Section 603 (50 U.S.C. 1873) is amended--
       (1) by redesignating subsection (e) as subsection (f); and
       (2) by inserting after subsection (d) the following:
       ``(e) Annual Report by DOJ Inspector General on Accuracy 
     and Completeness of Applications.--

[[Page S5737]]

       ``(1) Definition of appropriate committees of congress.--In 
     this subsection, the term `appropriate committees of 
     Congress' means--
       ``(A) the Committee on the Judiciary and the Select 
     Committee on Intelligence of the Senate; and
       ``(B) the Committee on the Judiciary and the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives.
       ``(2) Report.--In April of each year, the Inspector General 
     of the Department of Justice shall submit to the appropriate 
     committees of Congress and make public, subject to a 
     declassification review, a report setting forth, with respect 
     to the preceding calendar year, the following:
       ``(A) A summary of all accuracy or completeness reviews of 
     applications submitted to the Foreign Intelligence 
     Surveillance Court by the Federal Bureau of Investigation.
       ``(B) The total number of applications reviewed for 
     accuracy or completeness.
       ``(C) The total number of material errors or omissions 
     identified during such reviews.
       ``(D) The total number of nonmaterial errors or omissions 
     identified during such reviews.
       ``(E) The total number of instances in which facts 
     contained in an application were not supported by 
     documentation that existed in the applicable file being 
     reviewed at the time of the accuracy review.''.
                                 ______