[Congressional Record Volume 170, Number 68 (Thursday, April 18, 2024)]
[Senate]
[Page S2898]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1832. Mr. DURBIN (for himself, Mr. Cramer, Ms. Hirono, and Mr. 
Lee) submitted an amendment intended to be proposed by him to the bill 
H.R. 7888, to reform the Foreign Intelligence Surveillance Act of 1978; 
which was ordered to lie on the table; as follows:

       At the appropriate place, insert the following:

     SEC. ___. PROHIBITION ON WARRANTLESS ACCESS TO THE 
                   COMMUNICATIONS AND OTHER INFORMATION OF UNITED 
                   STATES PERSONS.

       (a) Definition.--Section 702(f) is amended in paragraph 
     (5), as so redesignated by section 2(a)(2) of this Act--
       (1) by redesignating subparagraph (B) as subparagraph (C); 
     and
       (2) by inserting after subparagraph (A) the following:
       ``(B) The term `covered query' means a query conducted--
       ``(i) using a term associated with a United States person; 
     or
       ``(ii) for the purpose of finding the information of a 
     United States person.''.
       (b) Prohibition.--Section 702(f) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)) is 
     amended--
       (1) by redesignating paragraph (5), as redesignated by 
     section 2(a)(1) of this Act, as paragraph (8);
       (2) in paragraph (1)(A) by inserting ``and the limitations 
     and requirements in paragraph (5)'' after ``Constitution of 
     the United States''; and
       (3) by inserting after paragraph (4), as added by section 
     16(a)(1) of this Act, the following:
       ``(5) Prohibition on warrantless access to the 
     communications and other information of united states 
     persons.--
       ``(A) In general.--Except as provided in subparagraphs (B) 
     and (C), no officer or employee of the United States may 
     access communications content, or information the compelled 
     disclosure of which would require a probable cause warrant if 
     sought for law enforcement purposes inside the United States, 
     acquired under subsection (a) and returned in response to a 
     covered query.
       ``(B) Exceptions for concurrent authorization, consent, 
     emergency situations, and certain defensive cybersecurity 
     queries.--Subparagraph (A) shall not apply if--
       ``(i) the person to whom the query relates is the subject 
     of an order or emergency authorization authorizing electronic 
     surveillance, a physical search, or an acquisition under this 
     section or section 105, section 304, section 703, or section 
     704 of this Act or a warrant issued pursuant to the Federal 
     Rules of Criminal Procedure by a court of competent 
     jurisdiction;
       ``(ii)(I) the officer or employee accessing the 
     communications content or 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 subitem (AA), the communications content or information 
     must be accessed before authorization described in clause (i) 
     can, with due diligence, be obtained; and

       ``(II) not later than 14 days after the communications 
     content or information is accessed, a description of the 
     circumstances justifying the accessing of the query results 
     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) such person 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)(I) the communications content or information is 
     accessed and used for the sole purpose of identifying 
     targeted recipients of malicious software and preventing or 
     mitigating harm from such malicious software;
       ``(II) other than malicious software and cybersecurity 
     threat signatures, no communications content or other 
     information are accessed or reviewed; and
       ``(III) the accessing of query results is reported to the 
     Foreign Intelligence Surveillance Court.
       ``(C) Matters relating to emergency queries.--
       ``(i) Treatment of denials.--In the event that 
     communications content or information returned in response to 
     a covered query are accessed pursuant to an emergency 
     authorization described in subparagraph (B)(i) and the 
     subsequent application to authorize electronic surveillance, 
     a physical search, or an acquisition pursuant to section 
     105(e), section 304(e), section 703(d), or section 704(d) of 
     this Act is denied, or in any other case in which 
     communications content or information returned in response to 
     a covered query are accessed in violation of this paragraph--

       ``(I) no communications content or information acquired or 
     evidence derived from such access may be used, received in 
     evidence, or otherwise disseminated in any investigation by 
     or 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
       ``(II) no communications content or information acquired or 
     derived from such access may subsequently be used or 
     disclosed in any other manner without the consent of the 
     person to whom the covered query relates, except in the case 
     that the Attorney General approves the use or disclosure of 
     such information in order to prevent the death of or serious 
     bodily harm to any person.

       ``(ii) Assessment of compliance.--Not less frequently than 
     annually, the Attorney General shall assess compliance with 
     the requirements under clause (i).
       ``(D) Foreign intelligence purpose.--
       ``(i) In general.--Except as provided in clause (ii) of 
     this subparagraph, no officer or employee of the United 
     States may conduct a covered query of information acquired 
     under subsection (a) unless the query is reasonably likely to 
     retrieve foreign intelligence information.
       ``(ii) Exceptions.--An officer or employee of the United 
     States may conduct a covered query of information acquired 
     under this section if--

       ``(I)(aa) the officer or employee conducting the query has 
     a reasonable belief that an emergency exists involving an 
     imminent threat of death or serious bodily harm; and
       ``(bb) not later than 14 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;
       ``(II) the person to whom the 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 query on a case-by-case basis;
       ``(III)(aa) the query is conducted, and the results of the 
     query are used, for the sole purpose of identifying targeted 
     recipients of malicious software and preventing or mitigating 
     harm from such malicious software;
       ``(bb) other than malicious software and cybersecurity 
     threat signatures, no additional contents of communications 
     acquired as a result of the query are accessed or reviewed; 
     and
       ``(cc) the query is reported to the Foreign Intelligence 
     Surveillance Court; or
       ``(IV) 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 
     thereof.

       ``(6) Documentation.--No officer or employee of the United 
     States may access communications content, or information the 
     compelled disclosure of which would require a probable cause 
     warrant if sought for law enforcement purposes inside the 
     United States, returned in response to a covered query unless 
     an electronic record is created that includes a statement of 
     facts showing that the access is authorized pursuant to an 
     exception specified in paragraph (5)(B).
       ``(7) Query record system.--The head of each agency that 
     conducts queries shall ensure that a system, mechanism, or 
     business practice is in place to maintain the records 
     described in paragraph (6). Not later than 90 days after the 
     date of enactment of the Reforming Intelligence and Securing 
     America Act, the head of each agency that conducts queries 
     shall report to Congress on its compliance with this 
     procedure.''.
       (c) Conforming Amendments.--
       (1) Section 603(b)(2) is amended, in the matter preceding 
     subparagraph (A), by striking ``, including pursuant to 
     subsection (f)(2) of such section,''.
       (2) Section 706(a)(2)(A)(i) is amended by striking 
     ``obtained an order of the Foreign Intelligence Surveillance 
     Court to access such information pursuant to section 
     702(f)(2)'' and inserting ``accessed such information in 
     accordance with section 702(b)(5)''.
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