S.Amdt. 1833

SA 1833. Mr. PAUL submitted an amendment intended to be proposed by
him to the bill H.R. 7888, to reform the Foreign Intelligence
Surveillance Act of 1978; which was ordered to lie on the table; as
follows:

On page 15, strike line 3 and all that follows through page
16, line 4, and insert the following:
(a) Prohibition on Warrantless Queries for the
Communications of United States Persons.--
(1) In general.--Section 702(f) is amended--
(A) by redesignating paragraph (5), as redesignated by
section 2(a)(1) of this Act, as paragraph (9);

[[Page S2899]]

(B) by redesignating paragraph (4), as added by section
16(a)(1) of this Act, as paragraph (8);
(C) by redesignating paragraph (3), as added by section
2(a)(2) of this Act, as paragraph (7);
(D) in paragraph (1)(A) by inserting ``and the limitations
and requirements in paragraph (2)'' after ``Constitution of
the United States''; and
(E) by striking paragraph (2) and inserting the following:
``(2) Prohibition on warrantless queries for the
communications and other information of united states
persons.--
``(A) In general.--Except as provided in subparagraphs (B)
and (C), no officer or employee of any agency that receives
any information obtained through an acquisition under this
section may conduct a query of information acquired under
this section for the purpose of finding communications or
information the compelled production of which would require a
probable cause warrant if sought for law enforcement purposes
in the United States, of a United States person.
``(B) Exceptions for concurrent authorization, consent,
emergency situations, and certain defensive cybersecurity
queries.--
``(i) In general.--Subparagraph (A) shall not apply to a
query related to a United States person if--

``(I) such person is the subject of an order or emergency
authorization authorizing electronic surveillance or physical
search under section 105 (50 U.S.C. 1805) or section 304 (50
U.S.C. 1824) of this Act, or a warrant issued pursuant to the
Federal Rules of Criminal Procedure by a court of competent
jurisdiction;
``(II)(aa) the officer or employee conducting the query has
a reasonable belief that--

``(AA) an emergency exists involving an imminent threat of
death or serious bodily harm; and
``(BB) in order to prevent or mitigate the threat described
in subitem (AA), the query must be conducted before
authorization described in subclause (I) can, with due
diligence, be obtained; and

``(bb) a description of the query is provided to the
Foreign Intelligence Surveillance Court and the congressional
intelligence committees and the Committees on the Judiciary
of the House of Representatives and of the Senate in a timely
manner;
``(III) such person or, if such person is incapable of
providing consent, a third party legally authorized to
consent on behalf of such person, has provided consent to the
query on a case-by-case basis; or
``(IV)(aa) the query uses a known cybersecurity threat
signature as a query term;
``(bb) the query is conducted, and the results of the query
are used, for the sole purpose of identifying targeted
recipients of malicious software and preventing or mitigating
harm from such malicious software;
``(cc) no additional contents of communications acquired as
a result of the query are accessed or reviewed; and
``(dd) each such query is reported to the Foreign
Intelligence Surveillance Court.

``(ii) Limitations.--

``(I) Use in subsequent proceedings.--No information
acquired pursuant to a query authorized under clause (i)(II)
or information derived from the information acquired pursuant
to such query may be used, received in evidence, or otherwise
disseminated 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,
except in a proceeding that arises from the threat that
prompted the query.
``(II) Assessment of compliance.--Not less frequently than
annually, the Attorney General shall assess compliance with
the requirements under subclause (I).

``(C) Matters relating to emergency queries.--
``(i) Treatment of denials.--In the event that a query for
communications or information, the compelled production of
which would require a probable cause warrant if sought for
law enforcement purposes in the United States, of a United
States person is conducted pursuant to an emergency
authorization described in subparagraph (B)(i)(I) and the
subsequent application for such surveillance pursuant to
section 105(e) (50 U.S.C. 1805(e)) or section 304(e) (50
U.S.C. 1824(e)) of this Act is denied, or in any other case
in which the query has been conducted in violation of this
paragraph--

``(I) no information acquired or evidence derived from such
query may be used, received in evidence, or otherwise
disseminated in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof;
and
``(II) no information concerning any United States person
acquired from such query may subsequently be used or
disclosed in any other manner without the consent of such
person, except in the case that the Attorney General approves
the use or disclosure of such information in order to prevent
death or serious bodily harm to any person.

``(ii) Assessment of compliance.--Not less frequently than
annually, the Attorney General shall assess compliance with
the requirements under clause (i).
``(D) Foreign intelligence purpose.--Except as provided in
subclauses (II) through (IV) of subparagraph (B)(i), no
officer or employee of any agency that receives any
information obtained through an acquisition under this
section may conduct a query of information acquired under
this section for the purpose of finding information of a
United States person unless the query is reasonably likely to
retrieve foreign intelligence information.
``(3) Documentation.--No officer or employee of any agency
that receives any information obtained through an acquisition
under this section may conduct a query of information
acquired under this section for the purpose of finding
information of or about a United States person, unless an
electronic record is created that includes the following:
``(A) Each term used for the conduct of the query.
``(B) The date of the query.
``(C) The identifier of the officer or employee.
``(D) A statement of facts showing that the use of each
query term included under subparagraph (A)--
``(i) falls within an exception specified in paragraph
(2)(B)(i); and
``(ii) is--

``(I) reasonably likely to retrieve foreign intelligence
information; or
``(II) in furtherance of an exception described in
subclauses (II) through (IV) of paragraph (2)(B)(i).

``(4) Query record system.--The head of each agency that
conducts queries shall ensure that a system, mechanism, or
business practice is in place to maintain the records
described in paragraph (3). Not later than 90 days after
enactment of this paragraph, the head of each agency shall
report to Congress on its compliance with this procedure.
``(5) Prohibition on results of metadata query as a basis
for access to communications and other protected
information.--If a query of information acquired under this
section is conducted for the purpose of finding
communications metadata of a United States person and the
query returns such metadata, the communications content
associated with the metadata may not be reviewed except as
provided under paragraph (2)(B)(i) of this subsection.
``(6) Federated datasets.--The prohibitions and
requirements under this subsection shall apply to queries of
federated and mixed datasets that include information
acquired under this section, unless each agency has
established a system, mechanism, or business practice to
limit the query to information not acquired under this
section.''.
(2) Conforming amendments.--
(A) Section 603(b)(2) is amended, in the matter preceding
subparagraph (A), by striking ``, including pursuant to
subsection (f)(2) of such section,''.
(B) Section 706(a)(2)(A)(i) is amended by striking
``obtained an order of the Foreign Intelligence Surveillance
Court to access such information pursuant to section
702(f)(2)'' and inserting ``accessed such information in
accordance with section 702(b)(2)''.
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