To prohibit warrantless access to the communications and other information of United States persons.

SA 1841. Mr. DURBIN (for himself, Mr. Cramer, and Ms. Hirono)
submitted an amendment intended to be proposed by him to the bill H.R.
7888, to reform the Foreign Intelligence Surveillance Act of 1978; as
follows:

[[Page S2939]]

At the appropriate place, insert the following:

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

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

``(aa) an emergency exists involving an imminent threat of
death or serious bodily harm; and
``(bb) in order to prevent or mitigate the threat described
in item (aa), the communications content or information must
be accessed before authorization described in clause (i) can,
with due diligence, be obtained; and

``(II) not later than 14 days after the communications
content or information is accessed, a description of the
circumstances justifying the accessing of the query results
is provided to the Foreign Intelligence Surveillance Court,
the congressional intelligence committees, the Committee on
the Judiciary of the House of Representatives, and the
Committee on the Judiciary of the Senate;
``(iii) such person or, if such person is incapable of
providing consent, a third party legally authorized to
consent on behalf of such person, has provided consent for
the access on a case-by-case basis; or
``(iv)(I) the communications content or information is
accessed and used for defensive cybersecurity purposes,
including the protection of a United States person from
cyber-related harms;
``(II) other than for such defensive cybersecurity
purposes, no communications content or other information
described in subparagraph (A) are accessed or reviewed; and
``(III) the accessing of query results is reported to the
Foreign Intelligence Surveillance Court.
``(C) Matters relating to emergency queries.--
``(i) Treatment of denials.--In the event that
communications content or information returned in response to
a covered query are accessed pursuant to an emergency
authorization described in subparagraph (B)(i) and the
subsequent application to authorize electronic surveillance,
a physical search, or an acquisition pursuant to section
105(e), section 304(e), section 703(d), or section 704(d) of
this Act is denied, or in any other case in which
communications content or information returned in response to
a covered query are accessed in violation of this paragraph--

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

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

``(I)(aa) the officer or employee conducting the query has
a reasonable belief that an emergency exists involving an
imminent threat of death or serious bodily harm; and
``(bb) not later than 14 days after the query is conducted,
a description of the query is provided to the Foreign
Intelligence Surveillance Court, the congressional
intelligence committees, the Committee on the Judiciary of
the House of Representatives, and the Committee on the
Judiciary of the Senate;
``(II) the person to whom the query relates or, if such
person is incapable of providing consent, a third party
legally authorized to consent on behalf of such person, has
provided consent for the query on a case-by-case basis;
``(III)(aa) the query is conducted, and the results of the
query are used, for defensive cybersecurity purposes,
including the protection of a United States person from
cyber-related harms;
``(bb) other than for such defensive cybersecurity
purposes, no communications content or other information
described in subparagraph (A) are accessed or reviewed; and
``(cc) the query is reported to the Foreign Intelligence
Surveillance Court; or
``(IV) the query is necessary to identify information that
must be produced or preserved in connection with a litigation
matter or to fulfill discovery obligations in a criminal
matter under the laws of the United States or any State
thereof.

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

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