S.Amdt. 6160

SA 6160. Mr. DURBIN (for himself and Mr. Lee) submitted an amendment
intended to be proposed by him to the bill S. 4784, to authorize
appropriations for fiscal year 2027 for military activities of the
Department of Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military personnel
strengths for such fiscal year, and for other purposes; which was
ordered to lie on the table; as follows:

At the appropriate place, insert the following:

TITLE __--PROTECTING AMERICANS FROM GOVERNMENT SPYING ACT

SEC. __01. SHORT TITLE.

This title may be cited as the ``Protecting Americans from
Government Spying Act''.

SEC. __02. QUERY PROCEDURE REFORM.

(a) Restrictions Relating to Conduct of Certain Queries.--
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 paragraph (7) and
transferring such paragraph, as so redesignated, so as to
appear after paragraph (6); and
(2) in paragraph (7), as so redesignated--
(A) by striking subparagraph (B) and inserting the
following:
``(B) The term `covered person' means--
``(i) a United States person; or
``(ii) a person reasonably believed to be located in the
United States--

``(I) at the time of the applicable query; or
``(II) at the time of the communication or creation of the
information subject to the applicable query.

``(C)(i) The term `covered query' means a query that--
``(I) is conducted using 1 or more terms associated with 1
or more covered persons, including but not limited to
personally identifiable information; or
``(II) is conducted in whole or in part for the purpose of
detecting or retrieving information of or concerning 1 or
more covered persons.
``(ii) Whether a query is a covered query shall be
determined without regard to whether the information subject
to the query has already been detected or retrieved using a
method other than a query described in clause (i).
``(D) The term `query'--
``(i) means the use of any technique, whether manual or
automated, to detect or retrieve information obtained through
acquisitions authorized under subsection (a) from within a
system, collection, or assortment of information, or a subset
thereof; and
``(ii) does not include the manual observation of retrieved
information.''.
(b) Prohibition on Warrantless Access to the Communications
and Other Information of United States Persons and Persons
Located in the United States.--Section 702(f) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)) is
amended--
(1) in paragraph (1)(A) by inserting ``and the limitations
and requirements in paragraph (2)'' after ``Constitution of
the United States'';
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by striking paragraphs (2) and (3) and inserting the
following:
``(2) Prohibition on warrantless access to the
communications and other information of united states persons
and persons located in the united states.--
``(A) In general.--Except as provided in subparagraph (B),
no officer or employee of any agency that has access to
unminimized communications or information obtained through an
acquisition under this section may access communications
content, or information the compelled disclosure of which
would require a probable cause warrant if sought for law
enforcement purposes inside the United States, acquired under
subsection (a) and returned in response to a covered query.
``(B) Exceptions for concurrent authorization, exigent
circumstances, consent, and certain defensive cybersecurity
queries.--
``(i) In general.--Subparagraph (A) shall not apply if--

``(I) the person to whom the covered query relates is the
subject of an order authorizing electronic surveillance, a
physical search, or an acquisition under 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)(aa) the person to whom the covered query relates is
the subject of an emergency authorization authorizing
electronic surveillance, a physical search, or an acquisition
under section 105, section 304, section 703, or section 704
of this Act; and
``(bb) the Attorney General makes or has made an
application to the Foreign Intelligence Surveillance Court in
accordance with section 105(e)(1)(D), section 304(e)(1)(D),
section 703(d)(1), or section 704(d)(1) of this Act;
``(III)(aa) 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

[[Page S3346]]

``(BB) in order to prevent or mitigate the threat described
in subitem (AA), the communications content or information
must be accessed before an authorization described in
subclause (I) can, with due diligence, be obtained; and

``(bb) not later than 7 days after the communications
content or information is accessed, a description of the
circumstances justifying the accessing of the results of the
covered 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;
``(IV) 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
``(V)(aa) the communications content or information is
accessed and used for the sole purpose of identifying a
potential victim or unwitting conduit of malicious cyber
activity who is not a potential perpetrator of such activity;
``(bb) other than for the purposes described in item (aa),
no communications content or other information described in
subparagraph (A) are accessed or reviewed; and
``(cc) the accessing of the results of the covered query is
reported to the Foreign Intelligence Surveillance Court.

``(ii) Limitations.--

``(I) Denial of application made after emergency
authorization.--If the Foreign Intelligence Surveillance
Court denies an application described in clause (i)(II)(bb),
the restrictions set forth in section 105(e)(5), 304(e)(5),
section 703(d)(4), or section 704(d)(4), as applicable, shall
apply.
``(II) FISA court review of emergency exception.--

``(aa) In general.--Not later than 7 days after receipt of
a description provided under clause (i)(III)(bb), the Foreign
Intelligence Surveillance Court shall determine whether the
criteria set forth in clause (i)(III)(aa) were met.
``(bb) Submission.--The Foreign Intelligence Surveillance
Court may require the submission of any additional
information the Court considers necessary to make the
determination described in item (aa).
``(cc) Criteria not met.--If the Foreign Intelligence
Surveillance Court determines that the criteria set forth in
item (aa) of clause (i)(III) were not met, no information
obtained or evidence derived from the accessing of querying
results 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
accessing of the results of the covered query 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.
``(iii) Assessment of compliance.--Not less frequently than
annually, the Attorney General shall assess--

``(I) compliance with the requirements under clause
(i)(II)(bb);
``(II) compliance with the requirements under clause
(i)(III)(bb); and
``(III) compliance with the requirements under subclauses
(I) and (II)(cc) of clause (ii).

``(C) Foreign intelligence purpose.--
``(i) In general.--Except as provided in clause (ii) of
this subparagraph, no officer or employee of any agency that
has access to unminimized communications or information
obtained through an acquisition under this section may
conduct a 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 query of information
acquired under this section that is not reasonably likely to
retrieve foreign intelligence information if--

``(I)(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) the query could reasonably be expected to assist in
mitigating or eliminating that threat to life or serious
bodily harm; and

``(bb) not later than 7 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; or
``(II) 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.

``(iii) Rule of construction.--Nothing in this subparagraph
shall be construed to limit any oversight or training
activities required under any other provision of law.
``(3) Documentation.--No officer or employee of any agency
that has access to unminimized communications or information
obtained through an acquisition under this section may access
communications content, or information the compelled
disclosure of which would require a probable cause warrant if
sought for law enforcement purposes inside the United States,
returned in response to a covered query unless an electronic
record is created that includes a statement of facts showing
that the access is authorized pursuant to an exception
specified in paragraph (2)(B).
``(4) Query record system.--The head of each agency that
has access to unminimized communications or information
obtained through an acquisition under this section 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 the date of enactment of the
Protecting Americans from Government Spying Act, the head of
each agency that has access to unminimized communications or
information obtained through an acquisition under this
section shall report to Congress on its compliance with this
procedure.''.
(c) Conforming Amendments.--
(1) Section 603(b)(2) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1873(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) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881e(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)''.
______