[House Report 113-452]
[From the U.S. Government Publishing Office]
113th Congress } { Rept. 113-452
2d Session } HOUSE OF REPRESENTATIVES { Part 2
=======================================================================
USA FREEDOM ACT
_______
May 15, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rogers of Michigan, from the Permanent Select Committee on
Intelligence, submitted the following
R E P O R T
[To accompany H.R. 3361]
[Including cost estimate of the Congressional Budget Office]
The Permanent Select Committee on Intelligence, to whom was
referred the bill (H.R. 3361) to reform the authorities of the
Federal Government to require the production of certain
business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``USA FREEDOM Act''.
(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--FISA BUSINESS RECORDS REFORMS
Sec. 101. Additional requirements for call detail records.
Sec. 102. Emergency authority.
Sec. 103. Prohibition on bulk collection of tangible things.
Sec. 104. Judicial review of minimization procedures for the production
of tangible things.
Sec. 105. Liability protection.
Sec. 106. Compensation for assistance.
Sec. 107. Definitions.
Sec. 108. Inspector general reports on business records orders.
Sec. 109. Effective date.
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
Sec. 201. Prohibition on bulk collection.
Sec. 202. Minimization procedures.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
Sec. 301. Prohibition on reverse targeting.
Sec. 302. Minimization procedures.
Sec. 303. Limits on use of unlawfully obtained information.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
Sec. 401. Appointment of amicus curiae.
Sec. 402. Declassification of decisions, orders, and opinions.
TITLE V--NATIONAL SECURITY LETTER REFORM
Sec. 501. Prohibition on bulk collection.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
Sec. 601. Additional reporting on orders requiring production of
business records.
Sec. 602. Business records compliance reports to Congress.
Sec. 603. Annual report by the Director of the Administrative Office of
the United States Courts on orders entered.
Sec. 604. Public reporting by persons subject to FISA orders.
Sec. 605. Reporting requirements for decisions of the Foreign
Intelligence Surveillance Court.
Sec. 606. Submission of reports under FISA.
TITLE VII--SUNSETS
Sec. 701. Sunsets.
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--FISA BUSINESS RECORDS REFORMS
SEC. 101. ADDITIONAL REQUIREMENTS FOR CALL DETAIL RECORDS.
(a) Application.--Section 501(b)(2) (50 U.S.C. 1861(b)(2)) is
amended--
(1) in subparagraph (A)--
(A) in the matter preceding clause (i), by striking
``a statement'' and inserting ``in the case of an
application other than an application described in
subparagraph (C), a statement''; and
(B) in clause (iii), by striking ``; and'' and
inserting a semicolon;
(2) by redesignating subparagraphs (A) and (B) as
subparagraphs (B) and (D), respectively; and
(3) by inserting after subparagraph (B) (as so redesignated)
the following new subparagraph:
``(C) in the case of an application for the
production of call detail records created on or after
the date of the application, a statement of facts
showing that--
``(i) there are reasonable grounds to believe
that the call detail records sought to be
produced based on the specific selection term
required under subparagraph (A) are relevant to
an authorized investigation (other than a
threat assessment) conducted in accordance with
subsection (a)(2) to protect against
international terrorism; and
``(ii) there are facts giving rise to a
reasonable, articulable suspicion that such
specific selection term is associated with a
foreign power or an agent of a foreign power;
and''.
(b) Order.--Section 501(c)(2) (50 U.S.C. 1861(c)(2)) is amended--
(1) in subparagraph (D), by striking ``; and'' and inserting
a semicolon;
(2) in subparagraph (E), by striking the period and inserting
``; and''; and
(3) by adding at the end the following new subparagraph:
``(F) in the case of an application described in
subsection (b)(2)(C), shall--
``(i) authorize the production of call detail
records for a period not to exceed 180 days;
``(ii) provide that an order for such
production may be extended upon application
under subsection (b) and the judicial finding
under paragraph (1);
``(iii) provide that the Government may
require the production of call detail records--
``(I) using the specific selection
term that satisfies the standard
required under subsection (b)(2)(C)(ii)
as the basis for production; and
``(II) using the results of the
production under subclause (I) as the
basis for production;
``(iv) direct each person the Government
directs to produce call detail records under
the order to furnish the Government forthwith
all information, facilities, or technical
assistance necessary to accomplish the
production in such a manner as will protect the
secrecy of the production and produce a minimum
of interference with the services that such
person is providing to each subject of the
production; and
``(v) direct the Government to destroy all
call detail records produced under the order
not later than 5 years after the date of the
production of such records, except for records
that are relevant to an authorized
investigation (other than a threat assessment)
conducted in accordance with subsection (a)(2)
to protect against international terrorism.''.
SEC. 102. EMERGENCY AUTHORITY.
(a) Authority.--Section 501 (50 U.S.C. 1861) is amended by adding at
the end the following new subsection:
``(i) Emergency Authority for Production of Tangible Things.--
``(1) Notwithstanding any other provision of this section,
the Attorney General may require the emergency production of
tangible things if the Attorney General--
``(A) reasonably determines that an emergency
situation requires the production of tangible things
before an order authorizing such production can with
due diligence be obtained;
``(B) reasonably determines that the factual basis
for the issuance of an order under this section to
approve such production of tangible things exists;
``(C) informs, either personally or through a
designee, a judge having jurisdiction under this
section at the time the Attorney General requires the
emergency production of tangible things that the
decision has been made to employ the authority under
this subsection; and
``(D) makes an application in accordance with this
section to a judge having jurisdiction under this
section as soon as practicable, but not later than 7
days after the Attorney General requires the emergency
production of tangible things under this subsection.
``(2) If the Attorney General authorizes the emergency
production of tangible things under paragraph (1), the Attorney
General shall require that the minimization procedures required
by this section for the issuance of a judicial order be
followed.
``(3) In the absence of a judicial order approving the
production of tangible things under this subsection, the
production shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time the Attorney
General begins requiring the emergency production of such
tangible things, whichever is earliest.
``(4) A denial of the application made under this subsection
may be reviewed as provided in this section.
``(5) If such application for approval is denied, or in any
other case where the production of tangible things is
terminated and no order is issued approving the production, no
information obtained or evidence derived from such production
shall be received in evidence or otherwise disclosed in any
trial, hearing, or other proceeding in or before any court,
grand jury, department, office, agency, regulatory body,
legislative committee, or other authority of the United States,
a State, or political subdivision thereof, and no information
concerning any United States person acquired from such
production shall subsequently be used or disclosed in any other
manner by Federal officers or employees without the consent of
such person, except with the approval of the Attorney General
if the information indicates a threat of death or serious
bodily harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''.
(b) Conforming Amendment.--Section 501(d) (50 U.S.C. 1861(d)) is
amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by
striking ``pursuant to an order'' and inserting
``pursuant to an order issued or an emergency
production required'';
(B) in subparagraph (A), by striking ``such order''
and inserting ``such order or such emergency
production''; and
(C) in subparagraph (B), by striking ``the order''
and inserting ``the order or the emergency
production''; and
(2) in paragraph (2)--
(A) in subparagraph (A), by striking ``an order'' and
inserting ``an order or emergency production''; and
(B) in subparagraph (B), by striking ``an order'' and
inserting ``an order or emergency production''.
SEC. 103. PROHIBITION ON BULK COLLECTION OF TANGIBLE THINGS.
(a) Application.--Section 501(b)(2) (50 U.S.C. 1861(b)(2)), as
amended by section 101(a) of this Act, is further amended by inserting
before subparagraph (B), as redesignated by such section 101(a) of this
Act, the following new subparagraph:
``(A) a specific selection term to be used as the
basis for the production of the tangible things
sought;''.
(b) Order.--Section 501(c) (50 U.S.C. 1861(c)) is amended--
(1) in paragraph (2)(A), by striking the semicolon and
inserting ``, including each specific selection term to be used
as the basis for the production;''; and
(2) by adding at the end the following new paragraph:
``(3) No order issued under this subsection may authorize the
collection of tangible things without the use of a specific selection
term that meets the requirements of subsection (b)(2).''.
SEC. 104. JUDICIAL REVIEW OF MINIMIZATION PROCEDURES FOR THE PRODUCTION
OF TANGIBLE THINGS.
Section 501(c)(1) (50 U.S.C. 1861(c)(1)) is amended by inserting
after ``subsections (a) and (b)'' the following: ``and that the
minimization procedures submitted in accordance with subsection
(b)(2)(D) meet the definition of minimization procedures under
subsection (g)''.
SEC. 105. LIABILITY PROTECTION.
Section 501(e) (50 U.S.C. 1861(e)) is amended to read as follows:
``(e) No cause of action shall lie in any court against a person who
produces tangible things or provides information, facilities, or
technical assistance pursuant to an order issued or an emergency
production required under this section. Such production shall not be
deemed to constitute a waiver of any privilege in any other proceeding
or context.''.
SEC. 106. COMPENSATION FOR ASSISTANCE.
Section 501 (50 U.S.C. 1861), as amended by section 102 of this Act,
is further amended by adding at the end the following new subsection:
``(j) Compensation.--The Government shall compensate, at the
prevailing rate, a person for producing tangible things or providing
information, facilities, or assistance in accordance with an order
issued or an emergency production required under this section.''.
SEC. 107. DEFINITIONS.
Section 501 (50 U.S.C. 1861), as amended by section 106 of this Act,
is further amended by adding at the end the following new subsection:
``(k) Definitions.--In this section:
``(1) Call detail record defined.--The term `call detail
record'--
``(A) means session identifying information
(including originating or terminating telephone number,
International Mobile Subscriber Identity number, or
International Mobile Station Equipment Identity
number), a telephone calling card number, or the time
or duration of a call; and
``(B) does not include--
``(i) the contents of any communication (as
defined in section 2510(8) of title 18, United
States Code);
``(ii) the name, address, or financial
information of a subscriber or customer; or
``(iii) cell site location information.
``(2) Specific selection term.--The term `specific selection
term' means a term used to uniquely describe a person, entity,
or account.''.
SEC. 108. INSPECTOR GENERAL REPORTS ON BUSINESS RECORDS ORDERS.
Section 106A of the USA PATRIOT Improvement and Reauthorization Act
of 2005 (Public Law 109-177; 120 Stat. 200) is amended--
(1) in subsection (b)--
(A) in paragraph (1), by inserting ``and calendar
years 2012 through 2014'' after ``2006'';
(B) by striking paragraphs (2) and (3);
(C) by redesignating paragraphs (4) and (5) as
paragraphs (2) and (3), respectively; and
(D) in paragraph (3) (as so redesignated)--
(i) by striking subparagraph (C) and
inserting the following new subparagraph:
``(C) with respect to calendar years 2012 through
2014, an examination of the minimization procedures
used in relation to orders under section 501 of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) and whether the minimization procedures
adequately protect the constitutional rights of United
States persons;''; and
(ii) in subparagraph (D), by striking ``(as
such term is defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C.
401a(4)))'';
(2) in subsection (c), by adding at the end the following new
paragraph:
``(3) Calendar years 2012 through 2014.--Not later than
December 31, 2015, the Inspector General of the Department of
Justice shall submit to the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate and the
Committee on the Judiciary and the Permanent Select Committee
on Intelligence of the House of Representatives a report
containing the results of the audit conducted under subsection
(a) for calendar years 2012 through 2014.'';
(3) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(4) by inserting after subsection (c) the following new
subsection:
``(d) Intelligence Assessment.--
``(1) In general.--For the period beginning on January 1,
2012, and ending on December 31, 2014, the Inspector General of
the Intelligence Community shall assess--
``(A) the importance of the information acquired
under title V of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1861 et seq.) to the activities
of the intelligence community;
``(B) the manner in which that information was
collected, retained, analyzed, and disseminated by the
intelligence community;
``(C) the minimization procedures used by elements of
the intelligence community under such title and whether
the minimization procedures adequately protect the
constitutional rights of United States persons; and
``(D) any minimization procedures proposed by an
element of the intelligence community under such title
that were modified or denied by the court established
under section 103(a) of such Act (50 U.S.C. 1803(a)).
``(2) Submission date for assessment.--Not later than
December 31, 2015, the Inspector General of the Intelligence
Community shall submit to the Committee on the Judiciary and
the Select Committee on Intelligence of the Senate and the
Committee on the Judiciary and the Permanent Select Committee
on Intelligence of the House of Representatives a report
containing the results of the assessment for calendar years
2012 through 2014.'';
(5) in subsection (e), as redesignated by paragraph (3)--
(A) in paragraph (1)--
(i) by striking ``a report under subsection
(c)(1) or (c)(2)'' and inserting ``any report
under subsection (c) or (d)''; and
(ii) by striking ``Inspector General of the
Department of Justice'' and inserting
``Inspector General of the Department of
Justice, the Inspector General of the
Intelligence Community, and any Inspector
General of an element of the intelligence
community that prepares a report to assist the
Inspector General of the Department of Justice
or the Inspector General of the Intelligence
Community in complying with the requirements of
this section''; and
(B) in paragraph (2), by striking ``the reports
submitted under subsections (c)(1) and (c)(2)'' and
inserting ``any report submitted under subsection (c)
or (d)'';
(6) in subsection (f), as redesignated by paragraph (3)--
(A) by striking ``The reports submitted under
subsections (c)(1) and (c)(2)'' and inserting ``Each
report submitted under subsection (c)''; and
(B) by striking ``subsection (d)(2)'' and inserting
``subsection (e)(2)''; and
(7) by adding at the end the following new subsection:
``(g) Definitions.--In this section:
``(1) Intelligence community.--The term `intelligence
community' has the meaning given that term in section 3 of the
National Security Act of 1947 (50 U.S.C. 3003).
``(2) United states person.--The term `United States person'
has the meaning given that term in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).''.
SEC. 109. EFFECTIVE DATE.
The amendments made by sections 101 through 103 shall take effect on
the date that is 180 days after the date of the enactment of this Act.
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
SEC. 201. PROHIBITION ON BULK COLLECTION.
(a) Prohibition.--Section 402(c) (50 U.S.C. 1842(c)) is amended--
(1) in paragraph (1), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (2), by striking the period and inserting a
semicolon; and
(3) by adding at the end the following new paragraph:
``(3) a specific selection term to be used as the basis for
selecting the telephone line or other facility to which the pen
register or trap and trace device is to be attached or applied;
and''.
(b) Definition.--Section 401 (50 U.S.C. 1841) is amended by adding at
the end the following new paragraph:
``(4) The term `specific selection term' has the meaning
given the term in section 501.''.
SEC. 202. MINIMIZATION PROCEDURES.
(a) Definition.--Section 401 (50 U.S.C. 1841), as amended by section
201 of this Act, is further amended by adding at the end the following
new paragraph:
``(5) The term `minimization procedures' means--
``(A) specific procedures that are reasonably
designed in light of the purpose and technique of an
order for the installation and use of a pen register or
trap and trace device to minimize the retention and
prohibit the dissemination of nonpublicly available
information concerning unconsenting United States
persons consistent with the need of the United States
to obtain, produce, and disseminate foreign
intelligence information;
``(B) procedures that require that nonpublicly
available information, which is not foreign
intelligence information, as defined in section
101(e)(1), shall not be disseminated in a manner that
identifies any United States person, without such
person's consent, unless such person's identity is
necessary to understand foreign intelligence
information or assess its importance; and
``(C) notwithstanding subparagraphs (A) and (B),
procedures that allow for the retention and
dissemination of information that is evidence of a
crime which has been, is being, or is about to be
committed and that is to be retained or disseminated
for law enforcement purposes.''.
(b) Application.--Section 402(c) (50 U.S.C. 1842(c)), as amended by
section 201 of this Act, is further amended by adding at the end the
following new paragraph:
``(4) a statement of proposed minimization procedures.''.
(c) Order.--Section 402(d) (50 U.S.C. 1842(d)) is amended--
(1) in paragraph (1), by inserting ``and that the proposed
minimization procedures meet the definition of minimization
procedures under this title'' before the period at the end; and
(2) in paragraph (2)(B)--
(A) in clause (ii)(II), by striking ``; and'' and
inserting a semicolon; and
(B) by adding at the end the following new clause:
``(iv) the minimization procedures be followed;
and''.
(d) Compliance Assessment.--Section 402 (50 U.S.C. 1842) is amended
by adding at the end the following new subsection:
``(h) At or before the end of the period of time for which the
installation and use of a pen register or trap and trace device is
approved under an order or an extension under this section, the judge
may assess compliance with the minimization procedures by reviewing the
circumstances under which information concerning United States persons
was retained or disseminated.''.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
SEC. 301. PROHIBITION ON REVERSE TARGETING.
Section 702(b)(2) (50 U.S.C. 1881a(b)(2)) is amended by striking
``the purpose'' and inserting ``a purpose''.
SEC. 302. MINIMIZATION PROCEDURES.
Section 702(e)(1) (50 U.S.C. 1881a(e)(1)) is amended--
(1) by striking ``that meet'' and inserting the following:
``that--
``(A) meet'';
(2) in subparagraph (A) (as designated by paragraph (1) of
this section), by striking the period and inserting ``; and'';
and
(3) by adding at the end the following new subparagraph:
``(B) consistent with such definition, minimize the
acquisition, and prohibit the retention and
dissemination, of any communication as to which the
sender and all intended recipients are determined to be
located in the United States and prohibit the use of
any discrete, non-target communication that is
determined to be to or from a United States person or a
person who appears to be located in the United States,
except to protect against an immediate threat to human
life.''.
SEC. 303. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION.
Section 702(i)(3) (50 U.S.C. 1881a(i)(3)) is amended by adding at the
end the following new subparagraph:
``(D) Limitation on use of information.--
``(i) In general.--Except as provided in
clause (ii), no information obtained or
evidence derived from an acquisition pursuant
to a certification or targeting or minimization
procedures subject to an order under
subparagraph (B) concerning any United States
person shall be received in evidence or
otherwise disclosed in any trial, hearing, or
other proceeding in or before any court, grand
jury, department, office, agency, regulatory
body, legislative committee, or other authority
of the United States, a State, or political
subdivision thereof, and no information
concerning any United States person acquired
from the acquisition shall subsequently be used
or disclosed in any other manner by Federal
officers or employees without the consent of
the United States person, except with the
approval of the Attorney General if the
information indicates a threat of death or
serious bodily harm to any person.
``(ii) Exception.--If the Government corrects
any deficiency identified by the order of the
Court under subparagraph (B), the Court may
permit the use or disclosure of information
acquired before the date of the correction
under such minimization procedures as the Court
shall establish for purposes of this clause.''.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
SEC. 401. APPOINTMENT OF AMICUS CURIAE.
Section 103 (50 U.S.C. 1803) is amended by adding at the end the
following new subsection:
``(i) Amicus Curiae.--
``(1) Authorization.--A court established under subsection
(a) or (b), consistent with the requirement of subsection (c)
and any other statutory requirement that the court act
expeditiously or within a stated time--
``(A) shall appoint an individual to serve as amicus
curiae to assist such court in the consideration of any
application for an order or review that, in the opinion
of the court, presents a novel or significant
interpretation of the law, unless the court issues a
written finding that such appointment is not
appropriate; and
``(B) may appoint an individual to serve as amicus
curiae in any other instance as such court deems
appropriate.
``(2) Designation.--The presiding judges of the courts
established under subsections (a) and (b) shall jointly
designate not less than 5 individuals to be eligible to serve
as amicus curiae. Such individuals shall be persons who possess
expertise in privacy and civil liberties, intelligence
collection, telecommunications, or any other area of law that
may lend legal or technical expertise to the courts and who
have been determined by appropriate executive branch officials
to be eligible for access to classified information.
``(3) Duties.--An individual appointed to serve as amicus
curiae under paragraph (1) shall carry out the duties assigned
by the appointing court. Such court may authorize the
individual appointed to serve as amicus curiae to review any
application, certification, petition, motion, or other
submission that the court determines is relevant to the duties
assigned by the court.
``(4) Notification.--The presiding judges of the courts
established under subsections (a) and (b) shall notify the
Attorney General of each exercise of the authority to appoint
an individual to serve as amicus curiae under paragraph (1).
``(5) Assistance.--A court established under subsection (a)
or (b) may request and receive (including on a non-reimbursable
basis) the assistance of the executive branch in the
implementation of this subsection.
``(6) Administration.--A court established under subsection
(a) or (b) may provide for the designation, appointment,
removal, training, or other support for an individual appointed
to serve as amicus curiae under paragraph (1) in a manner that
is not inconsistent with this subsection.''.
SEC. 402. DECLASSIFICATION OF DECISIONS, ORDERS, AND OPINIONS.
(a) Declassification.--Title VI (50 U.S.C. 1871 et seq.) is amended--
(1) in the heading, by striking ``REPORTING REQUIREMENT'' and
inserting ``OVERSIGHT''; and
(2) by adding at the end the following new section:
``SEC. 602. DECLASSIFICATION OF SIGNIFICANT DECISIONS, ORDERS, AND
OPINIONS.
``(a) Declassification Required.--Subject to subsection (b), the
Attorney General shall conduct a declassification review of each
decision, order, or opinion issued by the Foreign Intelligence
Surveillance Court or the Foreign Intelligence Surveillance Court of
Review (as defined in section 601(e)) that includes a significant
construction or interpretation of any provision of this Act and,
consistent with that review, make publicly available to the greatest
extent practicable each such decision, order, or opinion.
``(b) Redacted Form.--The Attorney General may satisfy the
requirement under subsection (a) to make a decision, order, or opinion
described in such subsection publicly available to the greatest extent
practicable by making such decision, order, or opinion publicly
available in redacted form.
``(c) National Security Waiver.--The Attorney General may waive the
requirement to declassify and make publicly available a particular
decision, order, or opinion under subsection (a) if the Attorney
General--
``(1) determines that a waiver of such requirement is
necessary to protect the national security of the United States
or properly classified intelligence sources or methods; and
``(2) makes publicly available an unclassified summary of
such decision, order, or opinion.''.
(b) Table of Contents Amendments.--The table of contents in the first
section is amended--
(1) by striking the item relating to title VI and inserting
the following new item:
``TITLE VI--OVERSIGHT''; and
(2) by inserting after the item relating to section 601 the
following new item:
``Sec. 602. Declassification of significant decisions, orders, and
opinions.''.
TITLE V--NATIONAL SECURITY LETTER REFORM
SEC. 501. PROHIBITION ON BULK COLLECTION.
(a) Counterintelligence Access to Telephone Toll and Transactional
Records.--Section 2709(b) of title 18, United States Code, is amended
in the matter preceding paragraph (1) by striking ``may'' and inserting
``may, using a specific selection term as the basis for a request''.
(b) Access to Financial Records for Certain Intelligence and
Protective Purposes.--Section 1114(a)(2) of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414(a)(2)) is amended by striking the
period and inserting ``and a specific selection term to be used as the
basis for the production and disclosure of financial records.''.
(c) Disclosures to FBI of Certain Consumer Records for
Counterintelligence Purposes.--Section 626(a) of the Fair Credit
Reporting Act (15 U.S.C. 1681u(a)) is amended by striking ``that
information,'' and inserting ``that information that includes a
specific selection term to be used as the basis for the production of
that information,''.
(d) Disclosures to Governmental Agencies for Counterterrorism
Purposes of Consumer Reports.--Section 627(a) of the Fair Credit
Reporting Act (15 U.S.C. 1681v(a)) is amended by striking ``analysis.''
and inserting ``analysis and a specific selection term to be used as
the basis for the production of such information.''.
(e) Definitions.--
(1) Counterintelligence access to telephone toll and
transactional records.--Section 2709 of title 18, United States
Code, is amended by adding at the end the following new
subsection:
``(g) Specific Selection Term Defined.--In this section, the term
`specific selection term' has the meaning given the term in section 501
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861).''.
(2) Access to financial records for certain intelligence and
protective purposes.--Section 1114 of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414) is amended by adding at
the end the following new subsection:
``(e) In this section, the term `specific selection term' has the
meaning given the term in section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861).''.
(3) Disclosures to fbi of certain consumer records for
counterintelligence purposes.--Section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u) is amended by adding at the end
the following new subsection:
``(n) Specific Selection Term Defined.--In this section, the term
`specific selection term' has the meaning given the term in section 501
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861).''.
(4) Disclosures to governmental agencies for counterterrorism
purposes of consumer reports.--Section 627 of the Fair Credit
Reporting Act (15 U.S.C. 1681v) is amended by adding at the end
the following new subsection:
``(g) Specific Selection Term Defined.--In this section, the term
`specific selection term' has the meaning given the term in section 501
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861).''.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
SEC. 601. ADDITIONAL REPORTING ON ORDERS REQUIRING PRODUCTION OF
BUSINESS RECORDS.
Section 502(b) (50 U.S.C. 1862(b)) is amended--
(1) by redesignating paragraphs (1), (2), and (3) as
paragraphs (5), (6), and (7), respectively; and
(2) by inserting before paragraph (5) (as so redesignated)
the following new paragraphs:
``(1) the total number of applications described in section
501(b)(2)(B) made for orders approving requests for the
production of tangible things;
``(2) the total number of such orders either granted,
modified, or denied;
``(3) the total number of applications described in section
501(b)(2)(C) made for orders approving requests for the
production of call detail records;
``(4) the total number of such orders either granted,
modified, or denied;''.
SEC. 602. BUSINESS RECORDS COMPLIANCE REPORTS TO CONGRESS.
(a) Business Records Productions.--Section 502(b) (50 U.S.C.
1862(b)), as amended by section 601 of this Act, is further amended--
(1) by redesignating paragraphs (1) through (7) as paragraphs
(2) through (8), respectively; and
(2) by inserting before paragraph (2) (as so redesignated)
the following new paragraph:
``(1) any compliance reviews conducted by the Federal
Government of the production of tangible things under section
501;''.
(b) FISA Authorities in General.--Section 601(a) (50 U.S.C. 1871(a))
is amended--
(1) in paragraph (4), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (5), by striking the period and inserting
``; and''; and
(3) by adding at the end the following new paragraph:
``(6) any compliance reviews conducted by the Federal
Government of electronic surveillance, physical searches, the
installation of pen register or trap and trace devices, access
to records, or acquisitions conducted under this Act.''.
SEC. 603. ANNUAL REPORT BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS ON ORDERS ENTERED.
(a) In General.--Title VI (50 U.S.C. 1871 et seq.), as amended by
section 402 of this Act, is further amended by adding at the end the
following new section:
``SEC. 603. ANNUAL REPORT ON ORDERS ENTERED.
``The Director of the Administrative Office of the United States
Courts shall annually submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House of
Representatives and the Select Committee on Intelligence and the
Committee on the Judiciary of the Senate and make publicly available on
an Internet website--
``(1) the number of orders entered under each of sections
105, 304, 402, 501, 702, 703, and 704;
``(2) the number of orders modified under each of those
sections;
``(3) the number of orders denied under each of those
sections; and
``(4) the number of appointments of an individual to serve as
amicus curiae under section 103, including the name of each
individual appointed to serve as amicus curiae.''.
(b) Table of Contents Amendment.--The table of contents in the first
section, as amended by section 402 of this Act, is further amended by
inserting after the item relating to section 602, as added by such
section 402, the following new item:
``Sec. 603. Annual report on orders entered.''.
SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO FISA ORDERS.
(a) In General.--Title VI (50 U.S.C. 1871 et seq.), as amended by
section 603 of this Act, is further amended by adding at the end the
following new section:
``SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO ORDERS.
``(a) Reporting.--A person may semiannually publicly report the
following information with respect to the preceding half year using one
of the following structures:
``(1) A report that aggregates the number of orders or
directives the person was required to comply with in the
following separate categories:
``(A) Criminal process, subject to no restrictions.
``(B) The number of national security letters
received, reported in bands of 1000 starting with 0-
999.
``(C) The number of customer accounts affected by
national security letters, reported in bands of 1000
starting with 0-999.
``(D) The number of orders under this Act for
content, reported in bands of 1000 starting with 0-999.
``(E) With respect to content orders under this Act,
in bands of 1000 starting with 0-999--
``(i) the number of customer accounts
affected under orders under title I; and
``(ii) the number of customer selectors
targeted under orders under title VII.
``(F) The number of orders under this Act for non-
content, reported in bands of 1000 starting with 0-999.
``(G) With respect to non-content orders under this
Act, in bands of 1000 starting with 0-999--
``(i) the number of customer accounts
affected under orders under--
``(I) title I;
``(II) title IV;
``(III) title V with respect to
applications described in section
501(b)(2)(B); and
``(IV) title V with respect to
applications described in section
501(b)(2)(C); and
``(ii) the number of customer selectors
targeted under orders under title VII.
``(2) A report that aggregates the number of orders or
directives the person was required to comply with in the
following separate categories:
``(A) Criminal process, subject to no restrictions.
``(B) The total number of all national security
process received, including all national security
letters and orders under this Act, reported as a single
number in a band of 0-249 and thereafter in bands of
250.
``(C) The total number of customer selectors targeted
under all national security process received, including
all national security letters and orders under this
Act, reported as a single number in a band of 0-249 and
thereafter in bands of 250.
``(3) A report that aggregates the number of orders or
directives the person was required to comply with in the
following separate categories:
``(A) Criminal process, subject to no restrictions.
``(B) The number of national security letters
received, reported in bands of 500 starting with 0-499.
``(C) The number of customer accounts affected by
national security letters, reported in bands of 500
starting with 0-499.
``(D) The number of orders under this Act for
content, reported in bands of 500 starting with 0-499.
``(E) The number of customer selectors targeted under
such orders, in bands of 500 starting with 0-499.
``(F) The number of orders under this Act for non-
content, reported in bands of 500 starting with 0-499.
``(G) The number of customer selectors targeted under
such orders, reported in bands of 500 starting with 0-
499.
``(b) National Security Letter Defined.--The term `national security
letter' means any of the following provisions:
``(1) Section 2709 of title 18, United States Code.
``(2) Section 1114(a)(5)(A) of the Right to Financial Privacy
Act of 1978 (12 U.S.C. 3414(a)(5)(A)).
``(3) Subsection (a) or (b) of section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u(a), 1681u(b)).
``(4) Section 627(a) of the Fair Credit Reporting Act (15
U.S.C. 1681v(a)).''.
(b) Table of Contents Amendment.--The table of contents in the first
section, as amended by section 603 of this Act, is further amended by
inserting after the item relating to section 603, as added by section
603 of this Act, the following new item:
``Sec. 604. Public reporting by persons subject to orders.''.
SEC. 605. REPORTING REQUIREMENTS FOR DECISIONS OF THE FOREIGN
INTELLIGENCE SURVEILLANCE COURT.
Section 601(c)(1) (50 U.S.C. 1871(c)) is amended to read as follows:
``(1) not later than 45 days after the date on which the
Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review issues a decision,
order, or opinion that includes a significant construction or
interpretation of any provision of this Act or a denial of a
request for an order or a modification of a request for an
order, or results in a change of application of any provision
of this Act or a new application of any provision of this Act--
``(A) a copy of such decision, order, or opinion and
any pleadings, applications, or memoranda of law
associated with such decision, order, or opinion; and
``(B) with respect to such decision, order, or
opinion, a brief statement of the relevant background
factual information, questions of law, legal analysis,
and decision rendered; and''.
SEC. 606. SUBMISSION OF REPORTS UNDER FISA.
(a) Electronic Surveillance.--Section 108(a)(1) (50 U.S.C.
1808(a)(1)) is amended by striking ``the House Permanent Select
Committee on Intelligence and the Senate Select Committee on
Intelligence, and the Committee on the Judiciary of the Senate,'' and
inserting ``the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives and the
Select Committee on Intelligence and the Committee on the Judiciary of
the Senate''.
(b) Physical Searches.--Section 306 (50 U.S.C. 1826) is amended--
(1) in the first sentence, by striking ``Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate, and the
Committee on the Judiciary of the Senate,'' and inserting
``Permanent Select Committee on Intelligence and the Committee
on the Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary of
the Senate''; and
(2) in the second sentence, by striking ``and the Committee
on the Judiciary of the House of Representatives''.
(c) Pen Register and Trap and Trace Devices.--Section 406(b) (50
U.S.C. 1846(b)) is amended--
(1) in paragraph (2), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (3), by striking the period and inserting a
semicolon; and
(3) by adding at the end the following new paragraphs:
``(4) each department or agency on behalf of which the
Government has made application for orders approving the use of
pen registers or trap and trace devices under this title; and
``(5) for each department or agency described in paragraph
(4), a breakdown of the numbers required by paragraphs (1),
(2), and (3).''.
(d) Access to Certain Business Records and Other Tangible Things.--
Section 502(a) (50 U.S.C. 1862(a)) is amended by striking ``Permanent
Select Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence and the Committee on the Judiciary
of the Senate'' and inserting ``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''.
TITLE VII--SUNSETS
SEC. 701. SUNSETS.
(a) USA PATRIOT Improvement and Reauthorization Act of 2005.--Section
102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of
2005 (50 U.S.C. 1805 note) is amended by striking ``June 1, 2015'' and
inserting ``December 31, 2017''.
(b) Intelligence Reform and Terrorism Prevention Act of 2004.--
Section 6001(b)(1) of the Intelligence Reform and Terrorism Prevention
Act of 2004 (50 U.S.C. 1801 note) is amended by striking ``June 1,
2015'' and inserting ``December 31, 2017''.
Purpose
The purpose of H.R. 3361 is to modernize the Foreign
Intelligence Surveillance Act of 1978 (FISA) and other national
security authorities to address public misperceptions of
intelligence activities.
Background and Need for Legislation
Until last year, the existence of a program to collect bulk
telephone call detail records, also known as telephone
metadata, under Section 215 of the USA PATRIOT Act was highly
classified. The classified nature of the program stemmed from
the simple fact that if our adversaries knew of the program and
its capabilities, they would change their communications
patterns so as to evade surveillance. The Committee has been
aware of the bulk telephone metadata program since its
inception and reauthorized Section 215 in 2005, 2006, 2010, and
2011 because the program was a lawful and effective
counterterrorism tool. If the program had been in place in
2001, the U.S. government potentially could have connected
phone calls from an al Qaeda safe house in Yemen to Khalid al-
Mihdhar, one of the September 11th hijackers inside the U.S.\1\
In the words of former FBI director Robert Mueller, finding
Mihdhar ``could have derailed the plan'' and prevented the
attacks.\2\ Since 2001, the program has helped prevent imminent
attacks and quickly discover terrorist networks--or, equally as
critical, confirm their absence--inside the U.S. We are all
safer because the bulk telephone metadata program gives the
government the ability to identify and track terrorist threats
with speed and agility.
---------------------------------------------------------------------------
\1\See ACLU v. Clapper, 959 F. Supp. 2d 724, 729 (S.D.N.Y. 2013)
(citing The 9/11 Commission Report: The Final Report of the National
Commission on Terrorist Attacks Upon the United States (2004)).
\2\Oversight of the Federal Bureau of Investigation: Hearing Before
the H. Comm. on the Judiciary, 113th Cong. 26 (2013) (statement of
Robert Mueller, Director, Federal Bureau of Investigation).
---------------------------------------------------------------------------
Not only is the program effective, it is legal. Two
presidential administrations of different parties and seventeen
federal judges shared the Committee's view of the program's
legality. There has not been a single case in which a
government official engaged in a willful effort to circumvent
or violate the restrictions on the use of telephone metadata.
To the contrary, the Committee's oversight has continuously
revealed a strong culture of compliance and lawfulness among
the men and women of the National Security Agency (NSA).
However, following the unprecedented and unquantifiably
damaging unauthorized disclosures of classified information,
the Director of National Intelligence declassified many aspects
of the bulk telephone metadata program. The unauthorized
disclosure of this program and others caused incalculable
damage to U.S. national security, much of which may not become
apparent for years. Even so, the disclosures have caused public
concern about the program, notwithstanding the care
demonstrated by the NSA to abide by the law and to protect the
constitutional rights of U.S. persons. This public concern led
the Committee to consider ways to end the bulk collection of
telephone metadata and enhance privacy and civil liberties
while preserving as much of the operational effectiveness and
flexibility of the program as possible.
The Committee's decision to end the bulk collection of
telephone metadata does not extend to any other intelligence
programs currently conducted under FISA, including access to
business records through Section 215 for foreign intelligence,
counterterrorism, and counterintelligence purposes, and the
targeting of persons outside the United States under Section
702. The Committee remains of the view that these other forms
of collection are effective, lawful, and subject to vigorous
oversight and review by the Intelligence Community, the
Department of Justice, Congress, and the courts.
Scope of Committee Review
The Committee systematically reviews programs conducted
under FISA on a ongoing basis through hearings, member
briefings, and staff briefings to ensure that the Intelligence
Community aggressively pursues foreign intelligence targets
while respecting Americans' privacy and civil liberties.
In the 113th Congress, the Committee conducted 12 closed
hearings and member briefings concerning FISA. Additionally,
the Committee held open hearings on potential changes to FISA
on June 18, 2013, and October 29, 2013.
Committee Statement and Views
Ban on bulk collection
This bill first bans the bulk collection of tangible things
under Section 215 of the USA PATRIOT Act. This ban is intended
to stop the use of Section 215 to acquire bulk call detail
records and to prohibit any future attempt to acquire bulk
electronic communications records. The Committee recognizes
that ``bulk'' collection means indiscriminate acquisition. It
does not mean the acquisition of a large number of
communications records or other tangible things--it would be
nonsensical and dangerous for our intelligence agencies'
collection authorities to contract as the number of our
adversaries expands.
Second, this bill contains amendments to other collection
authorities, including Section 402 of FISA and National
Security Letter authorities. These amendments respond to
concerns that those existing authorities could somehow contain
a ``loophole'' that would permit the reconstitution of a bulk
telephone records program. The Committee does not intend these
prophylactic amendments to affect any programs currently
authorized by Section 402 or the use of National Security
Letters.
This bill also makes technical amendments in Title III that
are not designed to have a substantive impact on currently
authorized intelligence activities conducted under Section 702
of FISA. Rather, the bill restates the existing prohibition on
reverse targeting of U.S. persons through Section 702, codifies
two portions of existing minimization procedures for certain
types of communications acquired through Section 702, and
prohibits the use in court of communications obtained through
deficient Section 702 acquisitions. None of these changes are
intended to alter activities currently conducted under Section
702. Rather, the changes are intended to provide statutory
clarity about the scope of Section 702 and how it is and is not
being used.
Targeted call detail records collection
Notwithstanding the effectiveness and legality of the bulk
telephone metadata program, this bill creates a mechanism for a
more-targeted authority for the prospective collection of call
detail records for counterterrorism purposes. The government
can continue to obtain specified historical call detail records
through the existing Section 215 authority. Even so, the bill
creates a new mechanism for obtaining prospective records on a
continuing basis for up to 180 days when there are reasonable
grounds to believe the call detail records are relevant to an
authorized investigation to protect against international
terrorism and there is a reasonable and articulable suspicion
the records are associated with a foreign power or the agent of
a foreign power. The new authority would allow the government
to obtain two ``hops'' of call detail records, based on the
reasonable and articulable suspicion determination made for the
initial seed query.\3\
---------------------------------------------------------------------------
\3\The Committee understands that ``[t]he first `hop' from a seed
returns results including all identifiers (and their associated
metadata) with a contact and/or connection with the seed. The second
``hop'' returns results that include all identifiers (and their
associated metadata) with a contact and/or connection with an
identifier revealed by the first `hop.''' In re Application of the FBI
for an Order Requiring the Production of Tangible Things, BR 14-01, at
1-2 n.1 (FISC Feb. 5, 2014).
---------------------------------------------------------------------------
The bill also includes an emergency authority that allows
the government to obtain records directly from
telecommunications companies when a pressing threat does not
leave enough time to seek judicial approval. The Committee
intends this emergency authority to provide the flexibility
necessary to protect the country from threats when judicial
preapproval would result in data being lost or not acquired in
enough time to be useful.
The Committee does not intend these changes to affect any
current uses of Section 215 outside of the bulk telephone
metadata program, including the use of Section 215 to obtain
call detail records related to foreign intelligence information
not concerning a U.S. person or call detail records related to
clandestine intelligence activities.
Although the Committee believes the authority created by
this bill will continue to have operational utility, the
Intelligence Community will not have the same capability as it
did under the existing bulk telephone metadata collection
program. Speed and agility will be diminished, but a majority
of our peers have determined that risk is acceptable in order
to protect against perceived privacy violations.
FISA transparency provisions
This bill also provides greater transparency for several
FISA authorities while attempting not to compromise sensitive
sources and methods of intelligence operations. Specifically,
the bill requires the Director of National Intelligence and the
Attorney General to declassify all significant opinions of the
Foreign Intelligence Surveillance Court or, if national
security prevents the declassification of the opinion even in
redacted form, to publish an unclassified summary of the
opinion. The bill also reinforces the court's existing
discretionary authority to appoint an amicus curiae in
significant or novel cases and allows the recipients of FISA
orders to publicly disclose how many orders they receive in
certain bands.
The bill extends the sunsets on three counterterrorism
authorities from June 1, 2015, to December 31, 2017--Section
215, the ``roving wiretap'' provision of the USA PATRIOT Act,
and the ``lone wolf'' provision of the Intelligence Reform and
Terrorism Prevention Act of 2004. This extension is based on
the Committee's view that these three authorities are effective
national security tools subject to continuing oversight.
The Committee's work on this bill is not yet done. Although
the Committee reported the bill to the House favorably, it did
so in the interest of expediency and comity with other
committees of the House. Members of the Committee will continue
to work to make a number of important technical changes to
ensure the preservation of operational equities before the full
House considers the bill. These technical changes will ensure
that the bill does not inadvertently disrupt important
intelligence operations.
Committee Consideration and Roll Call Votes
On May 8, 2014, The Committee considered the amendment in
the nature of a substitute to H.R. 3361. The contents of the
amendment in the nature of a substitute are described in the
Section-by-Section analysis and the Explanation of Amendment.
Chairman Rogers offered an amendment to revise the
emergency authority of Section 102, add Section 604, and make
other technical changes. The amendment was agreed to by a voice
vote.
Mr. Schiff offered an amendment that would establish a
public interest advocate for the Foreign Intelligence
Surveillance Court, which he subsequently withdrew.
Chairman Rogers then offered a motion to adopt the
amendment in the nature of a substitute, as amended. The motion
was agreed to by a voice vote.
The Committee then adopted a motion by Chairman Rogers to
favorably report the bill H.R. 3361 to the House, as amended.
The motion was agreed to by a voice vote.
Section-by-Section Analysis and Explanation of Amendment
TITLE I--FISA BUSINESS RECORD REFORMS
Sec. 101--Additional requirements for call detail records
This section creates a new process for the prospective
collection of call detail records. For counterterrorism
purposes only, when the government has a reasonable and
articulable suspicion that a specific selection term is
associated with a foreign power or an agent of a foreign power,
it may apply to the FISA court for an order requiring the
ongoing production of call detail records related to that
specific selection term and two ``hops'' removed for a period
not to exceed 180 days. The government may apply to renew these
orders.
Except for records that remain relevant to an authorized
counterterrorism investigation, the government is required to
destroy all information obtained under this program within five
years of its production.
This process created by this section applies solely to
government requests for call detail records. It has no effect
on government applications for any other type of tangible
thing.
Sec. 102--Emergency authority
This section creates a new emergency authority for the use
of Section 215. The Attorney General may authorize the
emergency production of tangible things, provided that such an
application is presented to the court within seven days. If the
court denies an emergency application, the government may not
use any of the information obtained under the emergency
authority except in instances of a threat of death or serious
bodily harm.
Sec. 103--Prohibition on bulk collection of tangible things
This section provides that Section 215 does not authorize
the bulk collection of tangible things.
Sec. 104--Judicial review of minimization procedures for the production
of tangible things
This section provides that the court may evaluate the
adequacy of minimization procedures under Section 215.
Sec. 105--Liability protection
This section extends liability protections to third parties
who provide information, facilities, or technical assistance to
the government in compliance with an order issued under Section
215. This provision mirrors the liability provisions in Titles
I and VII of FISA.
Sec. 106--Compensation for assistance
This section expressly permits the government to compensate
third parties for producing tangible things or providing
information, facilities, or assistance in accordance with an
order issue under Section 215.
Sec. 107--Definitions
This section provides a definition for the terms ``call
detail records'' and ``specific selection term.'' The term
``call detail records'' is defined to mean a telephone number,
an International Mobile Subscriber Identity number, an
International Mobile Station Equipment Identity number, a
telephone calling card number, or the time or duration of a
call. The term does not include the contents of any
communication; names, addresses, or financial information; or
cell site location information.
The term ``specific selection term'' is defined to mean a
term used to uniquely describe a person, entity, or account.
Sec. 108--Inspector general reports on business records orders
This section requires the Inspector General of the
Department of Justice to conduct a comprehensive review of the
use of Section 215 with respect to calendar years 2012 to 2014.
Also requires the Inspector General of the Intelligence
Community to assess the value and use of intelligence obtained
under Section 215 over the same period.
Sec. 109--Effective date
This section provides that the new telephone metadata
program, the new Section 215 emergency authority, and the
prohibition on bulk collection of tangible things under Section
215 take effect 180 days after enactment.
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
Sec. 201--Prohibition on bulk collection
This section provides that the pen register and trap and
trace device authority may not be used without a specific
selection term as the basis for selecting the telephone line or
other facility to which the pen register or trap and trace
devices is to be attached or applied. The Committee does not
intend this change to affect any current uses of the pen
register and trap and trace device authority.
Sec. 202--Minimization procedures
This section requires that the government adopt procedures
that are reasonably designed to minimize the retention and
prohibit the dissemination of nonpublic information about
United States persons. This section also explicitly authorizes
the court to assess compliance with these procedures while a
pen register and trap and trace device is in use.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
Sec. 301--Prohibition on reverse targeting
This section restates the prohibition on reverse targeting
by providing that the government may not intentionally target a
person under Section 702 in order to target a person reasonably
believed to be in the United States. The Committee does not
intend this change to affect any currently authorized uses of
Section 702.
Sec. 302--Minimization procedures
This section codifies existing procedures that require the
government to prohibit the retention and dissemination of
wholly domestic communications captured under Section 702. The
Committee does not intend this change to affect any currently
authorized uses of Section 702.
Sec. 303--Limits on use of unlawfully obtained information
This section provides that the government may not use
information acquired outside the scope of court-approved
targeting and minimization procedures in legal proceedings.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
Sec. 401--Appointment of amicus curiae
This section provides that both the FISA Court and the FISA
Court of Review may appoint an individual to serve as amicus
curiae in a case involving a novel or significant
interpretation of law. The presiding judges of the courts will
designate not less than five individuals who are eligible to
serve as amicus curiae. These individuals shall possess
expertise in privacy and civil liberties, intelligence
collection, telecommunications, or any other area of law that
may lend legal or technical expertise to the courts, and shall
possess appropriate security clearances.
Sec. 402--Declassification of decisions, orders, and opinions
This section requires the Attorney General, to conduct a
declassification review of each decision, order, or opinion of
the FISA court that includes a significant construction or
interpretation of law. If necessary to protect national
security, the Attorney General may waive this requirement so
long as it provides an unclassified summary of the decision.
The Committee expects the Attorney General to consult with the
classification authority for court opinions, the Director of
National Intelligence, as appropriate.
TITLE V--NATIONAL SECURITY LETTER REFORM
Sec. 501--Prohibition on bulk collection
This section prohibits the use of various National Security
Letter authorities without the use of a specific selection term
as the basis for the National Security Letter request. The
Committee does not expect this change to affect any current
authorized uses of National Security Letters.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
Sec. 601--Additional reporting on orders requiring production of
business records
In addition to existing annual reporting requirements, this
section requires the government to report on the number of
requests made for call detail records under the new telephone
metadata program.
Sec. 602--Business records compliance reports to Congress
This section requires the government to provide to Congress
any compliance reports related to the use of Section 215.
Sec. 603--Annual report by the Director of the Administrative Office of
the United States Courts on orders entered
This section requires the Director of the Administrative
Office of the United States Courts to make an annual report on
the number of orders issued under sections 105, 304, 402, 501,
702, 703, and 704 of FISA, as well as the number of
appointments of individuals to serve as amicus curiae to the
FISA court.
Sec. 604--Public reporting by persons subject to FISA orders
This section allows persons subject to FISA orders to
choose one of three options to publicly report, within certain
bands, how many orders they receive over a six-month period.
Sec. 605--Reporting requirements for decisions of the Foreign
Intelligence Surveillance Court
This section requires the Attorney General to provide to
the relevant committees, within 45 days of each decision,
order, or opinion that includes a significant construction or
interpretation, a copy of each such decision and a brief
statement of the relevant background.
Sec. 606--Submission of reports under FISA
This section includes the House Judiciary Committee in
several existing reporting requirements.
TITLE VII--SUNSETS
Sec. 701--Sunsets
This section aligns the three sun-setting provisions,
including: (1) business records (section 215 of the USA PATRIOT
Act); (2) roving wiretaps (section 206 of the USA PATRIOT Act);
and (3) lone wolf (section 6001(a) of IRTPA), with the sunset
of the FISA Amendment Act Reauthorization Act on December 31,
2017.
Oversight Findings and Recommendations
With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives, the Committee held multiple
closed hearings and briefings on the classified intelligence
programs affected by H.R. 3361. The Committee also held open
hearings on June 18, 2013, and October 29, 2013, on potential
changes to the Foreign Intelligence Surveillance Act. The bill,
as reported by the Committee, reflects conclusions reached by
the Committee in light of this oversight activity.
General Performance Goals and Objectives
The goal and objective of H.R. 3361 is to modernize
intelligence collection and increase transparency under the
Foreign Intelligence Surveillance Act of 1978. These activities
enhance the national security of the United States, support and
assist the armed forces of the United States, and support the
President in the execution of the foreign policy of the United
States.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. In compliance with this requirement, the Committee
has received a letter from the Congressional Budget Office
included herein.
Statement on Congressional Earmarks
Pursuant to clause 9 of rule XXI of the Rules of the House
of Representatives, the Committee states that the bill as
reported contains no congressional earmarks, limited tax
benefits, or limited tariff benefits.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to clause 3(c)(2) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 3361 from the Director of
the Congressional Budget Office.
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 14, 2014.
Hon. Mike Rogers,
Chairman, Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
Dear Mr. Chariman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3361, the USA
FREEDOM Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jason
Wheelock.
Sincerely,
Robert A. Sunshine
(For Douglas W. Elmendorf, Director).
Enclosure.
H.R. 3361--USA FREEDOM Act
H.R. 3361 would make several amendments to investigative
and surveillance authorities of the United States government,
and would specify the conditions under which the federal
government may conduct certain types of surveillance. CBO does
not provide estimates for classified programs; therefore, this
estimate addresses only the unclassified aspects of the bill.
On that limited basis, CBO estimates implementing H.R. 3361
would cost approximately $15 million over the 2015-2019 period,
subject to the appropriation of the necessary amounts.
Enacting H.R. 3361 also could affect direct spending and
revenues; therefore, pay-as-you-go procedures apply. The bill
could potentially result in additional criminal penalties
because it would extend for two years the authority of the
government to conduct surveillance in certain instances. Such
penalties are recorded as revenues, deposited in the Crime
Victims Fund, and later spent. However, CBO anticipates that
any amounts collected would be minimal and the net impact would
be insignificant.
Effects on the Federal Budget
The bill would amend the Foreign Intelligence Surveillance
Act (FISA). Those amendments would affect the operations of the
Foreign Intelligence Surveillance Court (FISC) and the
Judiciary. First, H.R. 3361 would permit the FISC to appoint an
amicus curiae, or ``friend of the court,'' to assist the court
when the government makes an application under FISA that
presents a novel or significant interpretation of FISA. Second,
the bill would limit collection of telephone call records,
thereby requiring the intelligence agencies--acting through the
Department of Justice--to seek additional warrants from the
FISC to access such data. Finally, the bill would require an
annual report by the Director of the Administrative Office of
the U.S. Courts (AOUSC), providing data on certain types of
FISA orders. Based on information from the AOUSC, CBO estimates
that implementing those requirements would cost approximately
$5 million over the 2015-2019 period, assuming appropriation of
the necessary amounts.
In addition, the bill would require federal agencies to
conduct several program assessments and reviews, and would
establish new reporting requirements. Section 108 would require
the Inspectors General of the Justice Department and the
Intelligence Community to assess the effectiveness of the
surveillance programs affected by the bill; section 402 would
require the Attorney General to conduct declassification
reviews of certain court decisions, orders, and opinions
related to FISA. CBO estimates that fulfilling these and other
reporting requirements in the bill would cost approximately $10
million over the 2015-2019 period, assuming appropriation of
the necessary amounts.
Intergovernmental and private-sector mandates
The bill would impose two mandates, as defined in the
Unfunded Mandates Reform Act (UMRA), on both private and
governmental entities. First, the bill would expand liability
protections and limit the ability of plaintiffs to sue in cases
where a defendant provides information to the federal
government pursuant to a FISA order. Second, it would require
entities, when compelled to provide information about telephone
calls to federal officials, to protect the secrecy of the
records and to minimize any disruption of services.
CBO estimates that the costs of those mandates would be
small. The change in expanded liability protection is a slight
modification to current law, and CBO estimates that the
elimination of any legal right of action for future plaintiffs
would affect a limited number of potential lawsuits.
Information from the Department of Justice indicates that
public entities receive few requests for call records, and the
cost to those entities of providing that information is
negligible. In addition, since public and private entities
already take action to protect private information in complying
with requests from the federal government and such entities
would be fully compensated by the government at the prevailing
rate for the services they provide, the costs to those entities
would be insignificant. Consequently, CBO estimates that the
total costs of all mandates in the bill would fall well below
the intergovernmental and private-sector thresholds established
in UMRA ($76 million and $152 million in 2014, respectively,
adjusted annually for inflation).
Previous CBO estimate
On May 7, 2014, the House Committee on the Judiciary
ordered reported a similar version of H.R. 3361. CBO's cost
estimates for both versions are the same.
Staff contacts
The CBO staff contacts for this estimate are Jason Wheelock
(for federal costs), J'nell L. Blanco (for the
intergovernmental effects), and Elizabeth Bass (for the
private-sector effects). This estimate was approved by Theresa
Gullo, Deputy Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act may be cited as the ``Foreign Intelligence Surveillance Act
of 1978''.
TABLE OF CONTENTS
* * * * * * *
[TITLE VI--REPORTING REQUIREMENT]
TITLE VI--OVERSIGHT
* * * * * * *
Sec. 602. Declassification of significant decisions, orders, and
opinions.
Sec. 603. Annual report on orders entered.
Sec. 604. Public reporting by persons subject to orders.
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
designation of judges
Sec. 103. (a) * * *
* * * * * * *
(i) Amicus Curiae.--
(1) Authorization.--A court established under
subsection (a) or (b), consistent with the requirement
of subsection (c) and any other statutory requirement
that the court act expeditiously or within a stated
time--
(A) shall appoint an individual to serve as
amicus curiae to assist such court in the
consideration of any application for an order
or review that, in the opinion of the court,
presents a novel or significant interpretation
of the law, unless the court issues a written
finding that such appointment is not
appropriate; and
(B) may appoint an individual to serve as
amicus curiae in any other instance as such
court deems appropriate.
(2) Designation.--The presiding judges of the courts
established under subsections (a) and (b) shall jointly
designate not less than 5 individuals to be eligible to
serve as amicus curiae. Such individuals shall be
persons who possess expertise in privacy and civil
liberties, intelligence collection, telecommunications,
or any other area of law that may lend legal or
technical expertise to the courts and who have been
determined by appropriate executive branch officials to
be eligible for access to classified information.
(3) Duties.--An individual appointed to serve as
amicus curiae under paragraph (1) shall carry out the
duties assigned by the appointing court. Such court may
authorize the individual appointed to serve as amicus
curiae to review any application, certification,
petition, motion, or other submission that the court
determines is relevant to the duties assigned by the
court.
(4) Notification.--The presiding judges of the courts
established under subsections (a) and (b) shall notify
the Attorney General of each exercise of the authority
to appoint an individual to serve as amicus curiae
under paragraph (1).
(5) Assistance.--A court established under subsection
(a) or (b) may request and receive (including on a non-
reimbursable basis) the assistance of the executive
branch in the implementation of this subsection.
(6) Administration.--A court established under
subsection (a) or (b) may provide for the designation,
appointment, removal, training, or other support for an
individual appointed to serve as amicus curiae under
paragraph (1) in a manner that is not inconsistent with
this subsection.
* * * * * * *
congressional oversight
Sec. 108. (a)(1) On a semiannual basis the Attorney General
shall fully inform [the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence,
and the Committee on the Judiciary of the Senate,] the
Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary of
the Senate concerning all electronic surveillance under this
title. Nothing in this title shall be deemed to limit the
authority and responsibility of the appropriate committees of
each House of Congress to obtain such information as they may
need to carry out their respective functions and duties.
* * * * * * *
TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
congressional oversight
Sec. 306. On a semiannual basis the Attorney General shall
fully inform the [Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on
Intelligence of the Senate, and the Committee on the Judiciary
of the Senate,] Permanent Select Committee on Intelligence and
the Committee on the Judiciary of the House of Representatives
and the Select Committee on Intelligence and the Committee on
the Judiciary of the Senate concerning all physical searches
conducted pursuant to this title. On a semiannual basis the
Attorney General shall also provide to those committees [and
the Committee on the Judiciary of the House of Representatives]
a report setting forth with respect to the preceding six-month
period--
(1) * * *
* * * * * * *
TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE PURPOSES
definitions
Sec. 401. As used in this title:
(1) * * *
* * * * * * *
(4) The term ``specific selection term'' has the
meaning given the term in section 501.
(5) The term ``minimization procedures'' means--
(A) specific procedures that are reasonably
designed in light of the purpose and technique
of an order for the installation and use of a
pen register or trap and trace device to
minimize the retention and prohibit the
dissemination of nonpublicly available
information concerning unconsenting United
States persons consistent with the need of the
United States to obtain, produce, and
disseminate foreign intelligence information;
(B) procedures that require that nonpublicly
available information, which is not foreign
intelligence information, as defined in section
101(e)(1), shall not be disseminated in a
manner that identifies any United States
person, without such person's consent, unless
such person's identity is necessary to
understand foreign intelligence information or
assess its importance; and
(C) notwithstanding subparagraphs (A) and
(B), procedures that allow for the retention
and dissemination of information that is
evidence of a crime which has been, is being,
or is about to be committed and that is to be
retained or disseminated for law enforcement
purposes.
pen registers and trap and trace devices for foreign intelligence and
international terrorism investigations
Sec. 402. (a) * * *
* * * * * * *
(c) Each application under this section shall require the
approval of the Attorney General, or a designated attorney for
the Government, and shall include--
(1) the identity of the Federal officer seeking to
use the pen register or trap and trace device covered
by the application[; and];
(2) a certification by the applicant that the
information likely to be obtained is foreign
intelligence information not concerning a United States
person or is relevant to an ongoing investigation to
protect against international terrorism or clandestine
intelligence activities, provided that such
investigation of a United States person is not
conducted solely upon the basis of activities protected
by the first amendment to the Constitution[.];
(3) a specific selection term to be used as the basis
for selecting the telephone line or other facility to
which the pen register or trap and trace device is to
be attached or applied; and
(4) a statement of proposed minimization procedures.
(d)(1) Upon an application made pursuant to this section, the
judge shall enter an ex parte order as requested, or as
modified, approving the installation and use of a pen register
or trap and trace device if the judge finds that the
application satisfies the requirements of this section and that
the proposed minimization procedures meet the definition of
minimization procedures under this title.
(2) An order issued under this section--
(A) * * *
(B) shall direct that--
(i) * * *
(ii) such provider, landlord, custodian, or
other person--
(I) * * *
(II) shall maintain, under security
procedures approved by the Attorney
General and the Director of National
Intelligence pursuant to section
105(b)(2)(C) of this Act, any records
concerning the pen register or trap and
trace device or the aid furnished[;
and];
* * * * * * *
(iv) the minimization procedures be followed;
and
* * * * * * *
(h) At or before the end of the period of time for which the
installation and use of a pen register or trap and trace device
is approved under an order or an extension under this section,
the judge may assess compliance with the minimization
procedures by reviewing the circumstances under which
information concerning United States persons was retained or
disseminated.
* * * * * * *
congressional oversight
Sec. 406. (a) * * *
(b) On a semiannual basis, the Attorney General shall also
provide to the committees referred to in subsection (a) and to
the Committees on the Judiciary of the House of Representatives
and the Senate a report setting forth with respect to the
preceding 6-month period--
(1) * * *
(2) the total number of such orders either granted,
modified, or denied[; and];
(3) the total number of pen registers and trap and
trace devices whose installation and use was authorized
by the Attorney General on an emergency basis under
section 403, and the total number of subsequent orders
approving or denying the installation and use of such
pen registers and trap and trace devices[.];
(4) each department or agency on behalf of which the
Government has made application for orders approving
the use of pen registers or trap and trace devices
under this title; and
(5) for each department or agency described in
paragraph (4), a breakdown of the numbers required by
paragraphs (1), (2), and (3).
TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS.
(a) * * *
(b) Each application under this section--
(1) * * *
(2) shall include--
(A) a specific selection term to be used as
the basis for the production of the tangible
things sought;
[(A) a statement] (B) in the case of an
application other than an application described
in subparagraph (C), a statement of facts
showing that there are reasonable grounds to
believe that the tangible things sought are
relevant to an authorized investigation (other
than a threat assessment) conducted in
accordance with subsection (a)(2) to obtain
foreign intelligence information not concerning
a United States person or to protect against
international terrorism or clandestine
intelligence activities, such things being
presumptively relevant to an authorized
investigation if the applicant shows in the
statement of the facts that they pertain to--
(i) * * *
* * * * * * *
(iii) an individual in contact with,
or known to, a suspected agent of a
foreign power who is the subject of
such authorized investigation[; and];
(C) in the case of an application for the
production of call detail records created on or
after the date of the application, a statement
of facts showing that--
(i) there are reasonable grounds to
believe that the call detail records
sought to be produced based on the
specific selection term required under
subparagraph (A) are relevant to an
authorized investigation (other than a
threat assessment) conducted in
accordance with subsection (a)(2) to
protect against international
terrorism; and
(ii) there are facts giving rise to a
reasonable, articulable suspicion that
such specific selection term is
associated with a foreign power or an
agent of a foreign power; and
[(B)] (D) an enumeration of the minimization
procedures adopted by the Attorney General
under subsection (g) that are applicable to the
retention and dissemination by the Federal
Bureau of Investigation of any tangible things
to be made available to the Federal Bureau of
Investigation based on the order requested in
such application.
(c)(1) Upon an application made pursuant to this section, if
the judge finds that the application meets the requirements of
subsections (a) and (b) and that the minimization procedures
submitted in accordance with subsection (b)(2)(D) meet the
definition of minimization procedures under subsection (g), the
judge shall enter an ex parte order as requested, or as
modified, approving the release of tangible things. Such order
shall direct that minimization procedures adopted pursuant to
subsection (g) be followed.
(2) An order under this subsection--
(A) shall describe the tangible things that
are ordered to be produced with sufficient
particularity to permit them to be fairly
identified[;], including each specific
selection term to be used as the basis for the
production;
* * * * * * *
(D) may only require the production of a
tangible thing if such thing can be obtained
with a subpoena duces tecum issued by a court
of the United States in aid of a grand jury
investigation or with any other order issued by
a court of the United States directing the
production of records or tangible things[;
and];
(E) shall not disclose that such order is
issued for purposes of an investigation
described in subsection (a)[.]; and
(F) in the case of an application described
in subsection (b)(2)(C), shall--
(i) authorize the production of call
detail records for a period not to
exceed 180 days;
(ii) provide that an order for such
production may be extended upon
application under subsection (b) and
the judicial finding under paragraph
(1);
(iii) provide that the Government may
require the production of call detail
records--
(I) using the specific
selection term that satisfies
the standard required under
subsection (b)(2)(C)(ii) as the
basis for production; and
(II) using the results of the
production under subclause (I)
as the basis for production;
(iv) direct each person the
Government directs to produce call
detail records under the order to
furnish the Government forthwith all
information, facilities, or technical
assistance necessary to accomplish the
production in such a manner as will
protect the secrecy of the production
and produce a minimum of interference
with the services that such person is
providing to each subject of the
production; and
(v) direct the Government to destroy
all call detail records produced under
the order not later than 5 years after
the date of the production of such
records, except for records that are
relevant to an authorized investigation
(other than a threat assessment)
conducted in accordance with subsection
(a)(2) to protect against international
terrorism.
(3) No order issued under this subsection may authorize the
collection of tangible things without the use of a specific
selection term that meets the requirements of subsection
(b)(2).
(d)(1) No person shall disclose to any other person that the
Federal Bureau of Investigation has sought or obtained tangible
things [pursuant to an order] pursuant to an order issued or an
emergency production required under this section, other than
to--
(A) those persons to whom disclosure is necessary to
comply with [such order] such order or such emergency
production;
(B) an attorney to obtain legal advice or assistance
with respect to the production of things in response to
[the order] the order or the emergency production; or
* * * * * * *
(2)(A) A person to whom disclosure is made pursuant to
paragraph (1) shall be subject to the nondisclosure
requirements applicable to a person to whom [an order] an order
or emergency production is directed under this section in the
same manner as such person.
(B) Any person who discloses to a person described in
subparagraph (A), (B), or (C) of paragraph (1) that the Federal
Bureau of Investigation has sought or obtained tangible things
pursuant to [an order] an order or emergency production under
this section shall notify such person of the nondisclosure
requirements of this subsection.
* * * * * * *
[(e) A person who, in good faith, produces tangible things
under an order pursuant to this section shall not be liable to
any other person for such production. Such production shall not
be deemed to constitute a waiver of any privilege in any other
proceeding or context.]
(e) No cause of action shall lie in any court against a
person who produces tangible things or provides information,
facilities, or technical assistance pursuant to an order issued
or an emergency production required under this section. Such
production shall not be deemed to constitute a waiver of any
privilege in any other proceeding or context.
* * * * * * *
(i) Emergency Authority for Production of Tangible Things.--
(1) Notwithstanding any other provision of this
section, the Attorney General may require the emergency
production of tangible things if the Attorney General--
(A) reasonably determines that an emergency
situation requires the production of tangible
things before an order authorizing such
production can with due diligence be obtained;
(B) reasonably determines that the factual
basis for the issuance of an order under this
section to approve such production of tangible
things exists;
(C) informs, either personally or through a
designee, a judge having jurisdiction under
this section at the time the Attorney General
requires the emergency production of tangible
things that the decision has been made to
employ the authority under this subsection; and
(D) makes an application in accordance with
this section to a judge having jurisdiction
under this section as soon as practicable, but
not later than 7 days after the Attorney
General requires the emergency production of
tangible things under this subsection.
(2) If the Attorney General authorizes the emergency
production of tangible things under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this section for the issuance of
a judicial order be followed.
(3) In the absence of a judicial order approving the
production of tangible things under this subsection,
the production shall terminate when the information
sought is obtained, when the application for the order
is denied, or after the expiration of 7 days from the
time the Attorney General begins requiring the
emergency production of such tangible things, whichever
is earliest.
(4) A denial of the application made under this
subsection may be reviewed as provided in this section.
(5) If such application for approval is denied, or in
any other case where the production of tangible things
is terminated and no order is issued approving the
production, no information obtained or evidence derived
from such production shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury,
department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or political subdivision thereof, and
no information concerning any United States person
acquired from such production shall subsequently be
used or disclosed in any other manner by Federal
officers or employees without the consent of such
person, except with the approval of the Attorney
General if the information indicates a threat of death
or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with
the requirements of paragraph (5).
(j) Compensation.--The Government shall compensate, at the
prevailing rate, a person for producing tangible things or
providing information, facilities, or assistance in accordance
with an order issued or an emergency production required under
this section.
(k) Definitions.--In this section:
(1) Call detail record defined.--The term ``call
detail record''--
(A) means session identifying information
(including originating or terminating telephone
number, International Mobile Subscriber
Identity number, or International Mobile
Station Equipment Identity number), a telephone
calling card number, or the time or duration of
a call; and
(B) does not include--
(i) the contents of any communication
(as defined in section 2510(8) of title
18, United States Code);
(ii) the name, address, or financial
information of a subscriber or
customer; or
(iii) cell site location information.
(2) Specific selection term.--The term ``specific
selection term'' means a term used to uniquely describe
a person, entity, or account.
SEC. 502. CONGRESSIONAL OVERSIGHT.
(a) On an annual basis, the Attorney General shall fully
inform the [Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the Senate]
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 concerning all requests for the
production of tangible things under section 501.
(b) In April of each year, the Attorney General shall submit
to the House and Senate Committees on the Judiciary and the
House Permanent Select Committee on Intelligence and the Senate
Select Committee on Intelligence a report setting forth with
respect to the preceding calendar year--
(1) any compliance reviews conducted by the Federal
Government of the production of tangible things under
section 501;
(2) the total number of applications described in
section 501(b)(2)(B) made for orders approving requests
for the production of tangible things;
(3) the total number of such orders either granted,
modified, or denied;
(4) the total number of applications described in
section 501(b)(2)(C) made for orders approving requests
for the production of call detail records;
(5) the total number of such orders either granted,
modified, or denied;
[(1)] (6) the total number of applications made for
orders approving requests for the production of
tangible things under section 501;
[(2)] (7) the total number of such orders either
granted, modified, or denied; and
[(3)] (8) the number of such orders either granted,
modified, or denied for the production of each of the
following:
(A) * * *
* * * * * * *
TITLE VI--[REPORTING REQUIREMENT] OVERSIGHT
SEC. 601. SEMIANNUAL REPORT OF THE ATTORNEY GENERAL.
(a) Report.--On a semiannual basis, the Attorney General
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, in a manner
consistent with the protection of the national security, a
report setting forth with respect to the preceding 6-month
period--
(1) * * *
* * * * * * *
(4) a summary of significant legal interpretations of
this Act involving matters before the Foreign
Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review, including
interpretations presented in applications or pleadings
filed with the Foreign Intelligence Surveillance Court
or the Foreign Intelligence Surveillance Court of
Review by the Department of Justice[; and];
(5) copies of all decisions, orders, or opinions of
the Foreign Intelligence Surveillance Court or Foreign
Intelligence Surveillance Court of Review that include
significant construction or interpretation of the
provisions of this Act[.]; and
(6) any compliance reviews conducted by the Federal
Government of electronic surveillance, physical
searches, the installation of pen register or trap and
trace devices, access to records, or acquisitions
conducted under this Act.
* * * * * * *
(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in subsection
(a)--
[(1) a copy of any decision, order, or opinion issued
by the Foreign Intelligence Surveillance Court or the
Foreign Intelligence Surveillance Court of Review that
includes significant construction or interpretation of
any provision of this Act, and any pleadings,
applications, or memoranda of law associated with such
decision, order, or opinion, not later than 45 days
after such decision, order, or opinion is issued; and]
(1) not later than 45 days after the date on which
the Foreign Intelligence Surveillance Court or the
Foreign Intelligence Surveillance Court of Review
issues a decision, order, or opinion that includes a
significant construction or interpretation of any
provision of this Act or a denial of a request for an
order or a modification of a request for an order, or
results in a change of application of any provision of
this Act or a new application of any provision of this
Act--
(A) a copy of such decision, order, or
opinion and any pleadings, applications, or
memoranda of law associated with such decision,
order, or opinion; and
(B) with respect to such decision, order, or
opinion, a brief statement of the relevant
background factual information, questions of
law, legal analysis, and decision rendered; and
* * * * * * *
SEC. 602. DECLASSIFICATION OF SIGNIFICANT DECISIONS, ORDERS, AND
OPINIONS.
(a) Declassification Required.--Subject to subsection (b),
the Attorney General shall conduct a declassification review of
each decision, order, or opinion issued by the Foreign
Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review (as defined in section 601(e))
that includes a significant construction or interpretation of
any provision of this Act and, consistent with that review,
make publicly available to the greatest extent practicable each
such decision, order, or opinion.
(b) Redacted Form.--The Attorney General may satisfy the
requirement under subsection (a) to make a decision, order, or
opinion described in such subsection publicly available to the
greatest extent practicable by making such decision, order, or
opinion publicly available in redacted form.
(c) National Security Waiver.--The Attorney General may waive
the requirement to declassify and make publicly available a
particular decision, order, or opinion under subsection (a) if
the Attorney General--
(1) determines that a waiver of such requirement is
necessary to protect the national security of the
United States or properly classified intelligence
sources or methods; and
(2) makes publicly available an unclassified summary
of such decision, order, or opinion.
SEC. 603. ANNUAL REPORT ON ORDERS ENTERED.
The Director of the Administrative Office of the United
States Courts shall annually submit to the Permanent Select
Committee on Intelligence and the Committee on the Judiciary of
the House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the Senate
and make publicly available on an Internet website--
(1) the number of orders entered under each of
sections 105, 304, 402, 501, 702, 703, and 704;
(2) the number of orders modified under each of those
sections;
(3) the number of orders denied under each of those
sections; and
(4) the number of appointments of an individual to
serve as amicus curiae under section 103, including the
name of each individual appointed to serve as amicus
curiae.
SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO ORDERS.
(a) Reporting.--A person may semiannually publicly report the
following information with respect to the preceding half year
using one of the following structures:
(1) A report that aggregates the number of orders or
directives the person was required to comply with in
the following separate categories:
(A) Criminal process, subject to no
restrictions.
(B) The number of national security letters
received, reported in bands of 1000 starting
with 0-999.
(C) The number of customer accounts affected
by national security letters, reported in bands
of 1000 starting with 0-999.
(D) The number of orders under this Act for
content, reported in bands of 1000 starting
with 0-999.
(E) With respect to content orders under this
Act, in bands of 1000 starting with 0-999--
(i) the number of customer accounts
affected under orders under title I;
and
(ii) the number of customer selectors
targeted under orders under title VII.
(F) The number of orders under this Act for
non-content, reported in bands of 1000 starting
with 0-999.
(G) With respect to non-content orders under
this Act, in bands of 1000 starting with 0-
999--
(i) the number of customer accounts
affected under orders under--
(I) title I;
(II) title IV;
(III) title V with respect to
applications described in
section 501(b)(2)(B); and
(IV) title V with respect to
applications described in
section 501(b)(2)(C); and
(ii) the number of customer selectors
targeted under orders under title VII.
(2) A report that aggregates the number of orders or
directives the person was required to comply with in
the following separate categories:
(A) Criminal process, subject to no
restrictions.
(B) The total number of all national security
process received, including all national
security letters and orders under this Act,
reported as a single number in a band of 0-249
and thereafter in bands of 250.
(C) The total number of customer selectors
targeted under all national security process
received, including all national security
letters and orders under this Act, reported as
a single number in a band of 0-249 and
thereafter in bands of 250.
(3) A report that aggregates the number of orders or
directives the person was required to comply with in
the following separate categories:
(A) Criminal process, subject to no
restrictions.
(B) The number of national security letters
received, reported in bands of 500 starting
with 0-499.
(C) The number of customer accounts affected
by national security letters, reported in bands
of 500 starting with 0-499.
(D) The number of orders under this Act for
content, reported in bands of 500 starting with
0-499.
(E) The number of customer selectors targeted
under such orders, in bands of 500 starting
with 0-499.
(F) The number of orders under this Act for
non-content, reported in bands of 500 starting
with 0-499.
(G) The number of customer selectors targeted
under such orders, reported in bands of 500
starting with 0-499.
(b) National Security Letter Defined.--The term ``national
security letter'' means any of the following provisions:
(1) Section 2709 of title 18, United States Code.
(2) Section 1114(a)(5)(A) of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)).
(3) Subsection (a) or (b) of section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u(a), 1681u(b)).
(4) Section 627(a) of the Fair Credit Reporting Act
(15 U.S.C. 1681v(a)).
TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE THE
UNITED STATES
* * * * * * *
SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS.
(a) * * *
(b) Limitations.--An acquisition authorized under subsection
(a)--
(1) * * *
(2) may not intentionally target a person reasonably
believed to be located outside the United States if
[the purpose] a purpose of such acquisition is to
target a particular, known person reasonably believed
to be in the United States;
* * * * * * *
(e) Minimization Procedures.--
(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National
Intelligence, shall adopt minimization procedures [that
meet] that--
(A) meet the definition of minimization
procedures under section 101(h) or 301(4), as
appropriate, for acquisitions authorized under
subsection (a)[.]; and
(B) consistent with such definition, minimize
the acquisition, and prohibit the retention and
dissemination, of any communication as to which
the sender and all intended recipients are
determined to be located in the United States
and prohibit the use of any discrete, non-
target communication that is determined to be
to or from a United States person or a person
who appears to be located in the United States,
except to protect against an immediate threat
to human life.
* * * * * * *
(i) Judicial Review of Certifications and Procedures.--
(1) * * *
* * * * * * *
(3) Orders.--
(A) * * *
* * * * * * *
(D) Limitation on use of information.--
(i) In general.--Except as provided
in clause (ii), no information obtained
or evidence derived from an acquisition
pursuant to a certification or
targeting or minimization procedures
subject to an order under subparagraph
(B) concerning any United States person
shall be received in evidence or
otherwise disclosed in any trial,
hearing, or other proceeding in or
before any court, grand jury,
department, office, agency, regulatory
body, legislative committee, or other
authority of the United States, a
State, or political subdivision
thereof, and no information concerning
any United States person acquired from
the acquisition shall subsequently be
used or disclosed in any other manner
by Federal officers or employees
without the consent of the United
States person, except with the approval
of the Attorney General if the
information indicates a threat of death
or serious bodily harm to any person.
(ii) Exception.--If the Government
corrects any deficiency identified by
the order of the Court under
subparagraph (B), the Court may permit
the use or disclosure of information
acquired before the date of the
correction under such minimization
procedures as the Court shall establish
for purposes of this clause.
* * * * * * *
----------
USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005
* * * * * * *
TITLE I--USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT
* * * * * * *
SEC. 102. USA PATRIOT ACT SUNSET PROVISIONS.
(a) * * *
(b) Sections 206 and 215 Sunset.--
(1) In general.--Effective [June 1, 2015] December
31, 2017, the Foreign Intelligence Surveillance Act of
1978 is amended so that sections 501, 502, and
105(c)(2) read as they read on October 25, 2001.
* * * * * * *
SEC. 106A. AUDIT ON ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN
INTELLIGENCE PURPOSES.
(a) * * *
(b) Requirements.--The audit required under subsection (a)
shall include--
(1) an examination of each instance in which the
Attorney General, any other officer, employee, or agent
of the Department of Justice, the Director of the
Federal Bureau of Investigation, or a designee of the
Director, submitted an application to the Foreign
Intelligence Surveillance Court (as such term is
defined in section 301(3) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1821(3))) for an
order under section 501 of such Act during the calendar
years of 2002 through 2006 and calendar years 2012
through 2014, including--
(A) * * *
* * * * * * *
[(2) the justification for the failure of the
Attorney General to issue implementing procedures
governing requests for the production of tangible
things under such section in a timely fashion,
including whether such delay harmed national security;
[(3) whether bureaucratic or procedural impediments
to the use of such requests for production prevent the
Federal Bureau of Investigation from taking full
advantage of the authorities provided under section 501
of such Act;]
[(4)] (2) any noteworthy facts or circumstances
relating to orders under such section, including any
improper or illegal use of the authority provided under
such section; and
[(5)] (3) an examination of the effectiveness of such
section as an investigative tool, including--
(A) * * *
* * * * * * *
[(C) with respect to calendar year 2006, an
examination of the minimization procedures
adopted by the Attorney General under section
501(g) of such Act and whether such
minimization procedures protect the
constitutional rights of United States
persons;]
(C) with respect to calendar years 2012
through 2014, an examination of the
minimization procedures used in relation to
orders under section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) and whether the minimization
procedures adequately protect the
constitutional rights of United States persons;
(D) whether, and how often, the Federal
Bureau of Investigation utilized information
acquired pursuant to an order under section 501
of such Act to produce an analytical
intelligence product for distribution within
the Federal Bureau of Investigation, to the
intelligence community [(as such term is
defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4)))], or
to other Federal, State, local, or tribal
government Departments, agencies, or
instrumentalities; and
* * * * * * *
(c) Submission Dates.--
(1) * * *
* * * * * * *
(3) Calendar years 2012 through 2014.-- Not later
than December 31, 2015, the Inspector General of the
Department of Justice shall submit to the Committee on
the Judiciary and the Select Committee on Intelligence
of the Senate and the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the
House of Representatives a report containing the
results of the audit conducted under subsection (a) for
calendar years 2012 through 2014.
(d) Intelligence Assessment.--
(1) In general.--For the period beginning on January
1, 2012, and ending on December 31, 2014, the Inspector
General of the Intelligence Community shall assess--
(A) the importance of the information
acquired under title V of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1861 et seq.) to the activities of the
intelligence community;
(B) the manner in which that information was
collected, retained, analyzed, and disseminated
by the intelligence community;
(C) the minimization procedures used by
elements of the intelligence community under
such title and whether the minimization
procedures adequately protect the
constitutional rights of United States persons;
and
(D) any minimization procedures proposed by
an element of the intelligence community under
such title that were modified or denied by the
court established under section 103(a) of such
Act (50 U.S.C. 1803(a)).
(2) Submission date for assessment.--Not later than
December 31, 2015, the Inspector General of the
Intelligence Community shall submit to the Committee on
the Judiciary and the Select Committee on Intelligence
of the Senate and the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the
House of Representatives a report containing the
results of the assessment for calendar years 2012
through 2014.
[(d)] (e) Prior Notice to Attorney General and Director of
National Intelligence; Comments.--
(1) Notice.--Not less than 30 days before the
submission of [a report under subsection (c)(1) or
(c)(2)] any report under subsection (c) or (d), the
[Inspector General of the Department of Justice]
Inspector General of the Department of Justice, the
Inspector General of the Intelligence Community, and
any Inspector General of an element of the intelligence
community that prepares a report to assist the
Inspector General of the Department of Justice or the
Inspector General of the Intelligence Community in
complying with the requirements of this section shall
provide such report to the Attorney General and the
Director of National Intelligence.
(2) Comments.--The Attorney General or the Director
of National Intelligence may provide comments to be
included in [the reports submitted under subsections
(c)(1) and (c)(2)] any report submitted under
subsection (c) or (d) as the Attorney General or the
Director of National Intelligence may consider
necessary.
[(e)] (f) Unclassified Form.--[The reports submitted under
subsections (c)(1) and (c)(2)] Each report submitted under
subsection (c) and any comments included under [subsection
(d)(2)] subsection (e)(2) shall be in unclassified form, but
may include a classified annex.
(g) Definitions.--In this section:
(1) Intelligence community.--The term ``intelligence
community'' has the meaning given that term in section
3 of the National Security Act of 1947 (50 U.S.C.
3003).
(2) United States person.--The term ``United States
person'' has the meaning given that term in section 101
of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801).
* * * * * * *
----------
TITLE 18, UNITED STATES CODE
PART I--CRIMES
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
Sec. 2709. Counterintelligence access to telephone toll and
transactional records
(a) * * *
(b) Required Certification.--The Director of the Federal
Bureau of Investigation, or his designee in a position not
lower than Deputy Assistant Director at Bureau headquarters or
a Special Agent in Charge in a Bureau field office designated
by the Director, [may] may, using a specific selection term as
the basis for a request--
(1) * * *
* * * * * * *
(g) Specific Selection Term Defined.--In this section, the
term ``specific selection term'' has the meaning given the term
in section 501 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861).
* * * * * * *
----------
RIGHT TO FINANCIAL PRIVACY ACT OF 1978
* * * * * * *
TITLE XI--RIGHT TO FINANCIAL PRIVACY
* * * * * * *
special procedures
Sec. 1114. (a)(1) * * *
(2) In the instances specified in paragraph (1), the
Government authority shall submit to the financial institution
the certificate required in section 1103(b) signed by a
supervisory official of a rank designated by the head of the
Government authority[.] and a specific selection term to be
used as the basis for the production and disclosure of
financial records.
* * * * * * *
(e) In this section, the term ``specific selection term'' has
the meaning given the term in section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).
----------
FAIR CREDIT REPORTING ACT
* * * * * * *
TITLE VI--CONSUMER CREDIT REPORTING
* * * * * * *
Sec. 626. Disclosures to FBI for counterintelligence purposes
(a) Identity of Financial Institutions.--Notwithstanding
section 604 or any other provision of this title, a consumer
reporting agency shall furnish to the Federal Bureau of
Investigation the names and addresses of all financial
institutions (as that term is defined in section 1101 of the
Right to Financial Privacy Act of 1978) at which a consumer
maintains or has maintained an account, to the extent that
information is in the files of the agency, when presented with
a written request for [that information,] that information that
includes a specific selection term to be used as the basis for
the production of that information, signed by the Director of
the Federal Bureau of Investigation, or the Director's designee
in a position not lower than Deputy Assistant Director at
Bureau headquarters or a Special Agent in Charge of a Bureau
field office designated by the Director, which certifies
compliance with this section. The Director or the Director's
designee may make such a certification only if the Director or
the Director's designee has determined in writing, that such
information is sought for the conduct of an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution of the United States.
* * * * * * *
(n) Specific Selection Term Defined.--In this section, the
term ``specific selection term'' has the meaning given the term
in section 501 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861).
Sec. 627. Disclosures to governmental agencies for counterterrorism
purposes
(a) Disclosure.--Notwithstanding section 604 or any other
provision of this title, a consumer reporting agency shall
furnish a consumer report of a consumer and all other
information in a consumer's file to a government agency
authorized to conduct investigations of, or intelligence or
counterintelligence activities or analysis related to,
international terrorism when presented with a written
certification by such government agency that such information
is necessary for the agency's conduct or such investigation,
activity or [analysis.] analysis and a specific selection term
to be used as the basis for the production of such information.
* * * * * * *
(g) Specific Selection Term Defined.--In this section, the
term ``specific selection term'' has the meaning given the term
in section 501 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861).
* * * * * * *
----------
INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
* * * * * * *
TITLE VI--TERRORISM PREVENTION
Subtitle A--Individual Terrorists as Agents of Foreign Powers
SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.
(a) * * *
(b) Sunset.--
(1) In general.--Except as provided in paragraph (2),
the amendment made by subsection (a) shall cease to
have effect on [June 1, 2015] December 31, 2017.
* * * * * * *
Disclosure of Directed Rule Making
H.R. 3361 does not specifically direct any rule makings
within the meaning of 5 U.S.C. 551.
Duplication of Federal Programs
H.R. 3361 does not duplicate or reauthorize an established
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
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