In the Senate of the United States,
May 14, 2020.
Amendments:
That the bill from the House of Representatives (H.R. 6172) entitled An Act to amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the production of certain business records, and for other purposes.
, do pass with the following
(1)
In subsection (a)(2)(B) of section 602 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1872), as added by section 301(b)(3), insert after section 103(i)
the following: , a proceeding in the Foreign Intelligence Court of Review resulting from the petition of an amicus curiae under section 103(i)(7), or a proceeding in which an amicus curiae could have been appointed pursuant to section 103(i)(2)(A).
(2)
In section 302, strike subsections (a) and (b) and insert the following:
Expansion of appointment authority
In general
Section 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended—
by striking subparagraph (A) and inserting the following:
shall appoint one or more individuals who have been designated under paragraph (1), not less than one of whom possesses privacy and civil liberties expertise, unless the court finds that such a qualification is inappropriate, to serve as amicus curiae to assist the court in the consideration of any application or motion for an order or review that, in the opinion of the court—
presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate;
presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution of the United States, unless the court issues a finding that such appointment is not appropriate;
presents or involves a sensitive investigative matter, unless the court issues a finding that such appointment is not appropriate;
presents a request for approval of a new program, a new technology, or a new use of existing technology, unless the court issues a finding that such appointment is not appropriate;
presents a request for reauthorization of programmatic surveillance, unless the court issues a finding that such appointment is not appropriate; or
otherwise presents novel or significant civil liberties issues, unless the court issues a finding that such appointment is not appropriate; and
; and
in subparagraph (B), by striking an individual or organization
each place the term appears and inserting one or more individuals or organizations
.
Definition of sensitive investigative matter
Subsection (i) of section 103 (50 U.S.C. 1803) is amended by adding at the end the following:
Definition
In this subsection, the term sensitive investigative matter means—
an investigative matter involving the activities of—
a domestic public official or political candidate, or an individual serving on the staff of such an official or candidate;
a domestic religious or political organization, or a known or suspected United States person prominent in such an organization; or
the domestic news media; or
any other investigative matter involving a domestic entity or a known or suspected United States person that, in the judgment of the applicable court established under subsection (a) or (b), is as sensitive as an investigative matter described in subparagraph (A).
.
Authority to seek review
Subsection (i) of section 103 (50 U.S.C. 1803), as amended by subsection (a) of this section, is amended—
in paragraph (4)—
in the paragraph heading, by inserting ; authority
after Duties
;
by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), and (iii), respectively, and adjusting the margins accordingly;
in the matter preceding clause (i), as so designated, by striking the amicus curiae shall
and inserting the following:
the amicus curiae—
shall
;
in subparagraph (A)(i), as so designated, by inserting before the semicolon at the end the following: , including legal arguments regarding any privacy or civil liberties interest of any United States person that would be significantly impacted by the application or motion
; and
by striking the period at the end and inserting the following:
; and
may seek leave to raise any novel or significant privacy or civil liberties issue relevant to the application or motion or other issue directly impacting the legality of the proposed electronic surveillance with the court, regardless of whether the court has requested assistance on that issue.
;
by redesignating paragraphs (7) through (12) as paragraphs (8) through (13), respectively; and
by inserting after paragraph (6) the following:
Authority to seek review of decisions
FISA Court decisions
Following issuance of an order under this Act by the Foreign Intelligence Surveillance Court, an amicus curiae appointed under paragraph (2) may petition the Foreign Intelligence Surveillance Court to certify for review to the Foreign Intelligence Surveillance Court of Review a question of law pursuant to subsection (j). If the court denies such petition, the court shall provide for the record a written statement of the reasons for such denial. Upon certification of any question of law pursuant to this subparagraph, the Court of Review shall appoint the amicus curiae to assist the Court of Review in its consideration of the certified question, unless the Court of Review issues a finding that such appointment is not appropriate.
FISA Court of Review decisions
An amicus curiae appointed under paragraph (2) may petition the Foreign Intelligence Surveillance Court of Review to certify for review to the Supreme Court of the United States any question of law pursuant to section 1254(2) of title 28, United States Code.
Declassification of referrals
For purposes of section 602, a petition filed under subparagraph (A) or (B) of this paragraph and all of its content shall be considered a decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review described in paragraph (2) of section 602(a).
.
(3)
In section 302(c), redesignate paragraph (2) as paragraph (3).
(4)
In section 302(c), strike paragraph (1) and insert the following:
Application and materials
Subparagraph (A) of section 103(i)(6) (50 U.S.C. 1803(i)(6)) is amended to read as follows:
In general
Right of amicus
If a court established under subsection (a) or (b) appoints an amicus curiae under paragraph (2), the amicus curiae—
shall have access to, to the extent such information is available to the Government—
the application, certification, petition, motion, and other information and supporting materials, including any information described in section 901, submitted to the Foreign Intelligence Surveillance Court in connection with the matter in which the amicus curiae has been appointed, including access to any relevant legal precedent (including any such precedent that is cited by the Government, including in such an application);
an unredacted copy of each relevant decision made by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review in which the court decides a question of law, without regard to whether the decision is classified; and
any other information or materials that the court determines are relevant to the duties of the amicus curiae; and
may make a submission to the court requesting access to any other particular materials or information (or category of materials or information) that the amicus curiae believes to be relevant to the duties of the amicus curiae.
Supporting documentation regarding accuracy
The Foreign Intelligence Surveillance Court, upon the motion of an amicus curiae appointed under paragraph (2) or upon its own motion, may require the Government to make available the supporting documentation described in section 902.
.
Clarification of access to certain information
Such section is further amended—
in subparagraph (B), by striking may
and inserting shall
; and
by striking subparagraph (C) and inserting the following:
Classified information
An amicus curiae appointed by the court shall have access to, to the extent such information is available to the Government, unredacted copies of each opinion, order, transcript, pleading, or other document of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review, including, if the individual is eligible for access to classified information, any classified documents, information, and other materials or proceedings.
.
(5)
Redesignate section 207 as section 208.
(6)
Insert after section 206 the following:
Disclosure of relevant information; certification regarding accuracy procedures
Disclosure of relevant information
In general
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following:
Disclosure of relevant information
Disclosure of relevant information
The Attorney General or any other Federal officer making an application for a court order under this Act shall provide the court with—
all information in the possession of the Government that is material to determining whether the application satisfies the applicable requirements under this Act, including any exculpatory information; and
all information in the possession of the Government that might reasonably—
call into question the accuracy of the application or the reasonableness of any assessment in the application conducted by the department or agency on whose behalf the application is made; or
otherwise raise doubts with respect to the findings that are required to be made under the applicable provision of this Act in order for the court order to be issued.
.
Technical amendment
The table of contents of the Foreign Intelligence Surveillance Act of 1978 is amended by adding at the end the following:
Title IX—DISCLOSURE OF RELEVANT INFORMATION
Sec. 901. Disclosure of relevant information.
.
Certification regarding accuracy procedures
In general
Title IX of the Foreign Intelligence Surveillance Act of 1978, as added by subsection (a), is amended by adding at the end the following:
Certification regarding accuracy procedures
Definition
In this section, the term accuracy procedures means specific procedures, adopted by the Attorney General, to ensure that an application for a court order under this Act, including any application for renewal of an existing order, is accurate and complete, including procedures that ensure, at a minimum, that—
the application reflects all information that might reasonably call into question the accuracy of the information or the reasonableness of any assessment in the application, or otherwise raises doubts about the requested findings;
the application reflects all material information that might reasonably call into question the reliability and reporting of any information from a confidential human source that is used in the application;
a complete file documenting each factual assertion in an application is maintained;
the applicant coordinates with the appropriate elements of the intelligence community (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)), concerning any prior or existing relationship with the target of any surveillance, search, or other means of investigation, and discloses any such relationship in the application;
before any application targeting a United States person is made, the applicant Federal officer shall document that the officer has collected and reviewed for accuracy and completeness supporting documentation for each factual assertion in the application; and
the applicant Federal agency establish compliance and auditing mechanisms on an annual basis to assess the efficacy of the accuracy procedures that have been adopted and report such findings to the Attorney General.
Statement and certification of accuracy procedures
Any Federal officer making an application for a court order under this Act shall include with the application—
a description of the accuracy procedures employed by the officer or the officer's designee; and
a certification that the officer or the officer’s designee has collected and reviewed for accuracy and completeness—
supporting documentation for each factual assertion contained in the application;
all information that might reasonably call into question the accuracy of the information or the reasonableness of any assessment in the application, or otherwise raises doubts about the requested findings; and
all material information that might reasonably call into question the reliability and reporting of any information from any confidential human source that is used in the application.
Necessary finding for court orders
A judge may not enter an order under this Act unless the judge finds, in addition to any other findings required under this Act, that the accuracy procedures described in the application for the order, as required under subsection (b)(1), are actually accuracy procedures as defined in this section.
.
Technical amendment
The table of contents of the Foreign Intelligence Surveillance Act of 1978, as amended by subsection (a), is amended by inserting after the item relating to section 901 the following:
Sec. 902. Certification regarding accuracy procedures.
.
(7)
In section 208, as so redesignated, strike section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) and insert: the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) (if applicable)
(8)
At the end, add the following:
Annual reporting on accuracy and completeness of applications
Section 603 (50 U.S.C. 1873) is amended—
by redesignating subsection (e) as subsection (f); and
by inserting after subsection (d) the following:
Annual report by DOJ Inspector General on accuracy and completeness of applications
Definition of appropriate committees of Congress
In this subsection, the term appropriate committees of Congress means—
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.
Report
In April of each year, the Inspector General of the Department of Justice shall submit to the appropriate committees of Congress and make public, subject to a declassification review, a report setting forth, with respect to the preceding calendar year, the following:
A summary of all accuracy or completeness reviews of applications submitted to the Foreign Intelligence Surveillance Court by the Federal Bureau of Investigation.
The total number of applications reviewed for accuracy or completeness.
The total number of material errors or omissions identified during such reviews.
The total number of nonmaterial errors or omissions identified during such reviews.
The total number of instances in which facts contained in an application were not supported by documentation that existed in the applicable file being reviewed at the time of the accuracy review.
.
Secretary