[Congressional Record Volume 170, Number 69 (Friday, April 19, 2024)]
[Senate]
[Pages S2935-S2939]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 1837. Mr. PAUL 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:

       Beginning on page 87, strike line 14 and all that follows 
     through page 90, line 4.
                                 ______
                                 
  SA 1838. Mr. PAUL 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;

[[Page S2936]]

       ``(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(f)(5)''.
                                 ______
                                 
  SA 1839. Mr. PAUL 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 any agency that receives 
     any information obtained through an acquisition under this 
     section 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.

[[Page S2937]]

       ``(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 any agency that 
     receives any information obtained through an acquisition 
     under this section 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 any agency 
     that receives any information obtained through an acquisition 
     under this section 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 any agency 
     that receives any information obtained through an acquisition 
     under this section 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(f)(5)''.
                                 ______
                                 
  SA 1840. Mr. LEE (for himself and Mr. Welch) submitted an amendment 
intended to be proposed by him to the bill H.R. 7888, to reform the 
Foreign Intelligence Surveillance Act of 1978; as follows:

       On page 19, strike line 22 and all that follows through 
     page 24, line 10, and insert the following:
       (b) Use of Amici Curiae in Foreign Intelligence 
     Surveillance Court Proceedings.--
       (1) Expansion of appointment authority.--
       (A) In general.--Section 103(i)(2) is amended--
       (i) by striking subparagraph (A) and inserting the 
     following:
       ``(A) shall, unless the court issues a finding that 
     appointment is not appropriate, 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;
       ``(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;
       ``(iii) presents or involves a sensitive investigative 
     matter;
       ``(iv) presents a request for approval of a new program, a 
     new technology, or a new use of existing technology;
       ``(v) presents a request for reauthorization of 
     programmatic surveillance; or
       ``(vi) otherwise presents novel or significant civil 
     liberties issues; and''; and
       (ii) in subparagraph (B), by striking ``an individual or 
     organization'' each place the term appears and inserting ``1 
     or more individuals or organizations''.
       (B) Definition of sensitive investigative matter.--Section 
     103(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).''.
       (2) Authority to seek review.--Section 103(i), as amended 
     by paragraph (1) of this subsection, is amended--
       (A) in paragraph (4)--
       (i) in the paragraph heading, by inserting ``; authority'' 
     after ``Duties'';
       (ii) by redesignating subparagraphs (A), (B), and (C) as 
     clauses (i), (ii), and (iii), respectively, and adjusting the 
     margins accordingly;
       (iii) in the matter preceding clause (i), as so 
     redesignated, by striking ``the amicus curiae shall'' and 
     inserting the following: ``the amicus curiae--
       ``(A) shall'';
       (iv) in subparagraph (A)(i), as so redesignated, 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
       (v) 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.'';
       (B) by redesignating paragraphs (7) through (12) as 
     paragraphs (8) through (13), respectively; and
       (C) 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) Declassification of referrals.--For purposes of 
     section 602, a petition filed under subparagraph (A) 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).''.
       (3) Access to information.--
       (A) Application and materials.--Section 103(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 
     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

[[Page S2938]]

       ``(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.''.
       (B) Clarification of access to certain information.--
     Section 103(i)(6) is amended--
       (i) in subparagraph (B), by striking ``may'' and inserting 
     ``shall''; and
       (ii) 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.''.
       (4) Definitions.--Section 101 is amended by adding at the 
     end the following:
       ``(q) The term `Foreign Intelligence Surveillance Court' 
     means the court established under section 103(a).
       ``(r) The term `Foreign Intelligence Surveillance Court of 
     Review' means the court established under section 103(b).''.
       (5) Technical amendments relating to striking section 5(c) 
     of the bill.--
       (A) Subsection (e) of section 603, as added by section 
     12(a) of this Act, is amended by striking ``section 103(m)'' 
     and inserting ``section 103(l)''.
       (B) Section 110(a), as added by section 15(b) of this Act, 
     is amended by striking ``section 103(m)'' and inserting 
     ``section 103(l)''.
       (C) Section 103 is amended by redesignating subsection (m), 
     as added by section 17 of this Act, as subsection (l).
       (6) Effective date.--The amendments made by this subsection 
     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.
       (c) Required Disclosure of Relevant Information in Foreign 
     Intelligence Surveillance Act of 1978 Applications.--
       (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--REQUIRED DISCLOSURE OF RELEVANT INFORMATION

     ``SEC. 901. DISCLOSURE OF RELEVANT INFORMATION.

       ``The Attorney General or any other Federal officer or 
     employee making an application for a court order under this 
     Act shall provide the court with--
       ``(1) all information in the possession of the applicant or 
     agency by which the applicant is employed 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 applicant or 
     agency by which the applicant is employed 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.

     ``SEC. 902. CERTIFICATION REGARDING ACCURACY PROCEDURES.

       ``(a) Definition of Accuracy Procedures.--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 (as defined in section 101) 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 amendments to eliminate amendments made by 
     section 10 of the bill.--
       (A) Subsection (a) of section 104 is amended--
       (i) in paragraph (9), as amended by section 6(d)(1)(B) of 
     this Act, by striking ``and'' at the end;
       (ii) in paragraph (10), as added by section 6(d)(1)(C) of 
     this Act, by adding ``and'' at the end;
       (iii) in paragraph (11), as added by section 6(e)(1) of 
     this Act, by striking ``; and'' and inserting a period;
       (iv) by striking paragraph (12), as added by section 
     10(a)(1) of this Act; and
       (v) by striking paragraph (13), as added by section 
     10(b)(1) of this Act.
       (B) Subsection (a) of section 303 is amended--
       (i) in paragraph (8), as amended by section 6(e)(2)(B) of 
     this Act, by adding ``and'' at the end;
       (ii) in paragraph (9), as added by section 6(e)(2)(C) of 
     this Act, by striking ``; and'' and inserting a period;
       (iii) by striking paragraph (10), as added by section 
     10(a)(2) of this Act; and
       (iv) by striking paragraph (11), as added by section 
     10(b)(2) of this Act.
       (C) Subsection (c) of section 402, as amended by 
     subsections (a)(3) and (b)(3) of section 10 of this Act, is 
     amended--
       (i) in paragraph (2), by adding ``and'' at the end;
       (ii) in paragraph (3), by striking the semicolon and 
     inserting a period;
       (iii) by striking paragraph (4), as added by section 
     10(a)(3)(C) of this Act; and
       (iv) by striking paragraph (5), as added by section 
     10(b)(3)(C) of this Act.
       (D) Subsection (b)(2) of section 502, as amended by 
     subsections (a)(4) and (b)(4) of section 10 of this Act, is 
     amended--
       (i) in subparagraph (A), by adding ``and'' at the end;
       (ii) in subparagraph (B), by striking the semicolon and 
     inserting a period;
       (iii) by striking subparagraph (E), as added by section 
     10(a)(4)(C) of this Act; and
       (iv) by striking subparagraph (F), as added by section 
     10(b)(4)(C) of this Act.
       (E) Subsection (b)(1) of section 703, as amended by 
     subsections (a)(5)(A) and (b)(5)(A) of section 10 of this 
     Act, is amended--
       (i) in subparagraph (I), by adding ``and'' at the end;
       (ii) in subparagraph (J), by striking the semicolon and 
     inserting a period;
       (iii) by striking subparagraph (K), as added by section 
     10(a)(5)(A)(iii) of this Act; and
       (iv) by striking subparagraph (L), as added by section 
     10(b)(5)(A)(iii) of this Act.
       (F) Subsection (b) of section 704, as amended by 
     subsections (a)(5)(B) and (b)(5)(B) of section 10 of this 
     Act, is amended--
       (i) in paragraph (6), by adding ``and'' at the end;
       (ii) in paragraph (7), by striking the semicolon and 
     inserting a period;
       (iii) by striking paragraph (8), as added by section 
     10(a)(5)(B)(iii) of this Act; and
       (iv) by striking paragraph (9), as added by section 
     10(b)(5)(B)(iii) of this Act.
       (G)(i) The Attorney General shall not be required to issue 
     procedures under paragraph (7) of section 10(a) of this Act.
       (ii) Nothing in clause (i) shall be construed to modify the 
     requirement for the Attorney General to issue accuracy 
     procedures under section 902(a) of the Foreign Intelligence 
     Surveillance Act of 1978, as added by paragraph (2) of this 
     subsection.
                                 ______
                                 
  SA 1841. Mr. DURBIN (for himself, Mr. Cramer, and Ms. Hirono) 
submitted an amendment intended to be proposed by him to the bill H.R. 
7888, to reform the Foreign Intelligence Surveillance Act of 1978; as 
follows:


[[Page S2939]]


  

       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 Federal Bureau of 
     Investigation 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 item (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 defensive cybersecurity purposes, 
     including the protection of a United States person from 
     cyber-related harms;
       ``(II) other than for such defensive cybersecurity 
     purposes, no communications content or other information 
     described in subparagraph (A) 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 Federal 
     Bureau of Investigation 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 Federal 
     Bureau of Investigation 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 defensive cybersecurity purposes, 
     including the protection of a United States person from 
     cyber-related harms;
       ``(bb) other than for such defensive cybersecurity 
     purposes, no communications content or other information 
     described in subparagraph (A) 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 Federal 
     Bureau of Investigation 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 Director of the Federal 
     Bureau of Investigation 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 Director of the Federal Bureau of 
     Investigation 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(f)(5)''.

                          ____________________