FISA Transparency and Modernization Act - Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to exclude call detail records from the categories of items that the Federal Bureau of Investigation (FBI) may seek in an application to a FISA court for an order requiring the production of tangible things (commonly referred to as business records) for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities. Defines "call detail records" as communications routing information.
Prohibits the federal government from acquiring under FISA: (1) records of any electronic communication without the use of specific identifiers or selection terms; or (2) library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, educational records, or medical records containing information that would identify a person without the use of specific identifiers or selection terms.
Authorizes the FISA court or the FISA court of review to appoint amicus curiae to assist in the consideration of certain FISA applications.
Expands the categories of FISA court decisions, orders, or opinions that the Attorney General (DOJ) is required to submit to Congress within 45 days after issuance of the decision, to include: (1) a denial or modification of a request for an order under FISA; and (2) a change of the application, or a new application, of any FISA provision. Directs the Attorney General to include with such court documents a brief statement of the relevant background factual information, questions of law, legal analysis, and decision rendered.
Requires the Director of National Intelligence (DNI) to: (1) conduct a declassification review of each decision, order, or opinion issued by the FISA court and the FISA court of review that includes a significant construction or interpretation of FISA; and (2) make such documents publicly available to the greatest extent practicable, subject to permissible redactions.
Authorizes the DNI to waive such review and public availability requirements if: (1) a waiver is necessary to protect the national security or properly classified intelligence sources or methods, and (2) an unclassified summary is made publicly available.
Requires the Attorney General to make available to the public an annual report describing the number of instances in which the contents of a U.S. person's communication were acquired under FISA authorities that could not reasonably have been anticipated to capture such contents.
Amends the National Security Act of 1947 to require the DNI to report annually to Congress regarding violations of laws or executive orders by personnel of an element of the intelligence community, including violations of Executive Order 12333 relating to U.S. intelligence activities.
Directs each head of an element of the intelligence community to review, at least every five years, the Attorney General-approved procedures required by the intelligence collection provisions of such Executive Order. Requires the heads of such elements, in coordination with the Attorney General and DNI, to propose any appropriate modifications to existing procedures and to provide any modified procedures to Congress.
Establishes procedures under which the Attorney General and the DNI may authorize jointly, for up to one year, the acquisition from an electronic communication service provider (ECSP) of certain communications records pertaining to a foreign power if: (1) the FISA court issues an order approving a certification, submitted to the court by the Attorney General and the DNI, that attests to the use of appropriate selection procedures and privacy protections; or (2) the Attorney General and the DNI, before obtaining FISA court approval, make a determination that time does not permit the issuance of a FISA court order because exigent circumstances exist that may result in the loss or untimely acquisition of intelligence important to national security.
Authorizes the Attorney General and the DNI, upon obtaining a FISA court order or making such an exigent circumstances determination, to acquire from an ECSP records created as a result of communications of an individual or facility that, based on reasonable and articulable suspicion, is: (1) a foreign power or the agent of a foreign power; (2) associated with a foreign power or the agent of a foreign power; or (3) in contact with, or known to, a suspected agent of a foreign power.
Requires any such acquisition to be reasonably designed not to acquire: (1) the contents associated with any communication; (2) records of wire or electronic communications without the use of specific identifiers or selection terms; or (3) the name, address, social security number, employer or taxpayer identification number, date of birth, or credit card number of any U.S. person.
Directs the Attorney General and the DNI, in the case of an acquisition under exigent circumstances before obtaining the FISA court's approval, to submit a certification to the FISA court for authorization within seven days after such determination.
Allows the Attorney General and the DNI, with respect to an acquisition approved by the FISA court or authorized under exigent circumstances, to issue a directive requiring an ECSP to provide to the government records that exist or are created in the future. Requires the government to compensate ECSPs for providing such records.
Directs the Attorney General to provide the FISA court a copy of each acquisition directive submitted to an ECSP. Permits the FISA court, if it determines that the selection procedures in a directive are improper, to order that the production of records be terminated or modified, that the information produced be destroyed, or another appropriate remedy.
Allows ECSPs to file a petition with the FISA court to modify or set aside a directive.
Permits the government or an ECSP to file a petition seeking Supreme Court review of a decision of the FISA court of review.
Prohibits procedures for issuing such directives from being construed to prevent a directive from requiring an ECSP to produce additional records, whether existing or created in the future, based on records produced by a previous directive.
Directs the DNI to: (1) ensure that employees, officers, and contractors of each element of the intelligence community who have been determined eligible for access to classified information are monitored on a continual basis to determine whether they continue to meet eligibility requirements; (2) require information sharing between elements of the community concerning potentially derogatory security information that may impact such an individual's security clearance eligibility.
Requires the DNI to ensure that contracts awarded by elements of the intelligence community require the contractor to operate under a security plan that complies with DNI standards for intelligence community networks.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4291 Introduced in House (IH)]
113th CONGRESS
2d Session
H. R. 4291
To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit
the bulk collection of call detail records, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 25, 2014
Mr. Rogers of Michigan (for himself, Mr. Miller of Florida, Mr.
Conaway, Mr. King of New York, Mr. LoBiondo, Mr. Nunes, Mr.
Westmoreland, Mrs. Bachmann, Mr. Pompeo, Mr. Ruppersberger, Mr.
Thompson of California, Mr. Langevin, and Ms. Sewell of Alabama)
introduced the following bill; which was referred to the Select
Committee on Intelligence (Permanent Select), and in addition to the
Committee on the Judiciary, for a period to be subsequently determined
by the Speaker, in each case for consideration of such provisions as
fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit
the bulk collection of call detail records, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``FISA Transparency and Modernization
Act''.
SEC. 2. PROHIBITION ON BULK COLLECTION OF CALL DETAIL RECORDS.
Section 501(a) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1861) is amended--
(1) in paragraph (1), by striking ``other items'' and
inserting ``other items, but not including call detail
records''; and
(2) by adding at the end the following new paragraph:
``(4) In this subsection, the term `call detail records' means
communications routing information, including an original or
terminating telephone number, an International Mobile Subscriber
Identity, an International Mobile Station Equipment Identity, a trunk
identifier, a telephone calling card number, the time or duration of a
call, or original or terminating text-message numerical information.''.
SEC. 3. PROHIBITION ON BULK COLLECTION OF ELECTRONIC COMMUNICATIONS
RECORDS.
(a) In General.--Notwithstanding any other provision of law, the
Federal Government may not acquire under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) records of any
electronic communication without the use of specific identifiers or
selection terms.
(b) Definition of Electronic Communications.--In this section, the
term ``electronic communication'' has the meaning given such term under
section 2510 of title 18, United States Code.
SEC. 4. PROHIBITION ON BULK COLLECTION OF CERTAIN BUSINESS RECORDS.
Notwithstanding any other provision of law, the Federal Government
may not acquire under the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) library circulation records, library patron
lists, book sales records, book customer lists, firearm sales records,
tax return records, educational records, or medical records containing
information that would identify a person without the use of specific
identifiers or selection terms.
SEC. 5. APPOINTMENT OF AMICUS CURIAE.
Section 103 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1803) is amended by adding at the end the following:
``(i) Amicus Curiae.--
``(1) Authorization.--Notwithstanding any other provision
of law, a court established under subsection (a) or (b) may,
consistent with the requirement of subsection (c) and any other
statutory requirement that the court act expeditiously or
within a stated time, to appoint amicus curiae to assist the
court in the consideration of a covered application.
``(2) Designation.--The courts established by subsection
(a) and (b) shall each designate 1 or more individuals who have
been determined by appropriate executive branch officials to be
eligible for access to classified information who may be
appointed to serve as amicus curiae. In appointing an amicus
curiae pursuant to paragraph (1), the court may choose from
among those so designated.
``(3) Expertise.--An individual appointed as an amicus
curiae under paragraph (1) may be a special counsel or an
expert on privacy and civil liberties, intelligence collection,
telecommunications, or any other area that may lend legal or
technical expertise to the court.
``(4) Duties.--An amicus curiae appointed under paragraph
(1) to assist with the consideration of a covered application
shall carry out the duties assigned by the appointing court.
That court may authorize, to the extent consistent with the
case or controversy requirements of article III of the
Constitution of the United States and the national security of
the United States, the 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.
``(5) Notification.--A court established under subsection
(a) or (b) shall notify the Attorney General of each exercise
of the authority to appoint an amicus curiae under paragraph
(1).
``(6) 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.
``(7) Administration.--A court established under subsection
(a) or (b) may provide for the designation, appointment,
removal, training, support, or other administration of an
amicus curiae appointed under paragraph (1) in a manner that is
not inconsistent with this subsection.
``(8) Congressional oversight.--The Attorney General shall
submit to the appropriate committees of Congress an annual
report on the number of notices described in paragraph (5)
received by Attorney General for the preceding 12-month period.
Each such report shall include the name of each individual
appointed as an amicus curiae during such period.
``(9) Definitions.--In this subsection:
``(A) Appropriate committees of congress.--The term
`appropriate committees of Congress' means--
``(i) the Committee on the Judiciary and
the Select Committee on Intelligence of the
Senate; and
``(ii) the Committee on the Judiciary and
the Permanent Select Committee on Intelligence
of the House of Representatives.
``(B) Covered application.--The term `covered
application' means an application for an order or
review made to a court established under subsection (a)
or (b)--
``(i) that, in the opinion of such a court,
presents a novel or significant interpretation
of the law; and
``(ii) that is--
``(I) an application for an order
under this title, title III, IV, or V
of this Act, or section 703 or 704 of
this Act;
``(II) a review of a certification
or procedures under section 503 or 702
of this Act; or
``(III) a notice of non-compliance
with any such order, certification, or
procedures.''.
SEC. 6. REPORTING REQUIREMENTS FOR DECISIONS OF THE FOREIGN
INTELLIGENCE SURVEILLANCE COURT.
Section 601(c)(1) of the Foreign Intelligence Surveillance Act of
1978 (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. 7. DECLASSIFICATION OF DECISIONS, ORDERS, AND OPINIONS.
(a) Declassification.--Title VI of the Foreign Intelligence
Surveillance Act of 1978 (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
Director of National Intelligence 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 that includes 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 Director of National Intelligence may
satisfy the requirement under subsection (a) to make a decision, order,
or opinions 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 Director of National
Intelligence may waive the requirement to declassify and make publicly
available a particular decision, order, or opinion under subsection (a)
if the Director--
``(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 of such Act 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.''.
SEC. 8. PUBLIC REPORTING ON INCIDENTAL COLLECTION OF UNITED STATES
PERSON INFORMATION.
Section 601 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1871) is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following new
subsection:
``(e) Public Reporting on Incidental Collection of United States
Person Information.--The Attorney General shall annually make publicly
available a report describing the number of identified instances in
which the contents of a communication of a United States person was
acquired under this Act when the acquisition authorized by this Act
that resulted in the collection of such contents could not reasonably
have been anticipated to capture such contents.''.
SEC. 9. ANNUAL REPORTS ON VIOLATIONS OF LAW OR EXECUTIVE ORDER.
(a) In General.--Title V of the National Security Act of 1947 (50
U.S.C. 3091 et seq.) is amended by adding at the end the following:
``SEC. 509. ANNUAL REPORT ON VIOLATIONS OF LAW OR EXECUTIVE ORDER.
``(a) Annual Reports Required.--Not later than April 1 of each
year, the Director of National Intelligence shall submit to the
congressional intelligence committees a report on violations of law or
executive order by personnel of an element of the intelligence
community that were identified during the previous calendar year.
``(b) Elements.--Each report required subsection (a) shall include
a description of any violation of law or executive order (including
Executive Order No. 12333 (50 U.S.C. 3001 note)) by personnel of an
element of the intelligence community in the course of such employment
that, during the previous calendar year, was determined by the
director, head, general counsel, or inspector general of any element of
the intelligence community to have occurred.''.
(b) Clerical Amendment.--The table of sections in the first section
of the National Security Act of 1947 is amended by adding after the
section relating to section 508 the following:
``Sec. 509. Annual report on violations of law or Executive order.''.
SEC. 10. PERIODIC REVIEW OF INTELLIGENCE COMMUNITY PROCEDURES FOR THE
ACQUISITION, RETENTION, AND DISSEMINATION OF
INTELLIGENCE.
(a) In General.--Title V of the National Security Act of 1947 (50
U.S.C. 3091 et seq.), as amended by section 9, is further amended by
adding at the end the following:
``SEC. 510. PERIODIC REVIEW OF INTELLIGENCE COMMUNITY PROCEDURES FOR
THE ACQUISITION, RETENTION, AND DISSEMINATION OF
INTELLIGENCE.
``(a) Head of an Element of the Intelligence Community Defined.--In
this section, the term `head of an element of the intelligence
community' means, as appropriate--
``(1) the head of an element of the intelligence community;
or
``(2) the head of the department or agency containing such
element.
``(b) Review of Procedures Approved by the Attorney General.--
``(1) Requirement for immediate review.--Each head of an
element of the intelligence community that has not obtained the
approval of the Attorney General for the procedures, in their
entirety, required by section 2.3 of Executive Order 12333 (50
U.S.C. 3001 note) within 5 years prior to the date of the
enactment of the FISA Transparency and Modernization Act, shall
initiate, not later than 180 days after such date of enactment,
a review of the procedures for such element, in accordance with
paragraph (3).
``(2) Requirement for review.--Not less frequently than
once every 5 years, each head of an element of the intelligence
community shall conduct a review of the procedures approved by
the Attorney General for such element that are required by
section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note), or
any successor order, in accordance with paragraph (3).
``(3) Requirements for reviews.--In coordination with the
Director of National Intelligence and the Attorney General, the
head of an element of the intelligence community required to
perform a review under paragraph (1) or (2) shall--
``(A) review existing procedures for such element
that are required by section 2.3 of Executive Order
12333 (50 U.S.C. 3001 note), or any successor order, to
assess whether--
``(i) advances in communications or other
technologies since the time the procedures were
most recently approved by the Attorney General
have affected the privacy protections that the
procedures afford to United States persons, to
include the protections afforded to United
States persons whose nonpublic communications
are incidentally acquired by an element of the
intelligence community; or
``(ii) aspects of the existing procedures
impair the acquisition, retention, or
dissemination of timely, accurate, and
insightful information about the activities,
capabilities, plans, and intentions of foreign
powers, organization, and persons, and their
agents; and
``(B) propose any modifications to existing
procedures for such element in order to--
``(i) clarify the guidance such procedures
afford to officials responsible for the
acquisition, retention, and dissemination of
intelligence;
``(ii) eliminate unnecessary impediments to
the acquisition, retention, and dissemination
of intelligence; or
``(iii) ensure appropriate protections for
the privacy of United States persons and
persons located inside the United States.
``(4) Notice.--The Director of National Intelligence and
the Attorney General shall notify the congressional
intelligence committees following the completion of each review
required under this section.
``(5) Requirement to provide procedures.--Upon the
implementation of any modifications to procedures required by
section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note), or
any successor order, the head of the element of the
intelligence community to which the modified procedures apply
shall promptly provide a copy of the modified procedures to the
congressional intelligence committees.''.
(b) Clerical Amendment.--The table of sections in the first section
of the National Security Act of 1947, as amended by section 9, is
further amended by adding after the section relating to section 509 the
following:
``Sec. 510. Periodic review of intelligence community procedures for
the acquisition, retention, and
dissemination of intelligence.''.
SEC. 11. PROCEDURES FOR TARGETED ACQUISITIONS OF TERRORIST AND FOREIGN
AGENT NON-CONTENT COMMUNICATIONS RECORDS.
(a) In General.--Title V of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1861 et seq.) is amended by adding at the end
the following new section:
``SEC. 503. PROCEDURES FOR TARGETED ACQUISITIONS OF TERRORIST AND
FOREIGN AGENT NON-CONTENT COMMUNICATIONS RECORDS.
``(a) Authorization.--Notwithstanding any other provision of law,
upon the issuance of an order in accordance with subsection (i)(3) or a
determination under subsection (c)(2), the Attorney General and the
Director of National Intelligence may authorize jointly, for a period
of up to 1 year from the effective date of the authorization, the
acquisition from an electronic communication service provider of
records created as a result of communications of an individual or
facility who, based on reasonable and articulable suspicion, is--
``(1) a foreign power or the agent of a foreign power;
``(2) associated with a foreign power or the agent of a
foreign power; or
``(3) in contact with, or known to, a suspected agent of a
foreign power.
``(b) Limitations.--An acquisition authorized under subsection (a)
shall be reasonably designed--
``(1) not to acquire--
``(A) the contents associated with any
communication;
``(B) records of wire or electronic communications
without the use of specific identifiers or selection
terms;
``(C) information for an investigation of a United
States person conducted solely upon the basis of
activities protected by the first amendment to the
Constitution; or
``(D) the name, address, social security number,
employer or taxpayer identification number, date of
birth, or credit card number of any United States
person; and
``(2) to comply with the fourth amendment to the
Constitution of the United States.
``(c) Conduct of Acquisition.--
``(1) In general.--An acquisition authorized under
subsection (a) shall be conducted only--
``(A) in accordance with the selection and civil
liberties and privacy protection procedures adopted in
accordance with subsections (d) and (e); and
``(B) upon submission of a certification in
accordance with subsection (g).
``(2) Determination.--A determination under this paragraph
and for purposes of subsection (a) is a determination by the
Attorney General and the Director of National Intelligence that
exigent circumstances exist because, without immediate
implementation of an authorization under subsection (a),
intelligence important to the national security of the United
States may be lost or not timely acquired and time does not
permit the issuance of an order pursuant to subsection (i)(3)
prior to the implementation of such authorization.
``(3) Timing of determination.--The Attorney General and
the Director of National Intelligence may make the
determination under paragraph (2)--
``(A) before the submission of a certification in
accordance with subsection (g); or
``(B) by amending a certification pursuant to
subsection (i)(1)(C) at any time during which judicial
review under subsection (i) of such certification is
pending.
``(d) Selection Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt selection procedures that are reasonably designed to
ensure that any acquisition authorized under subsection (a)
complies with the requirements and limitations relating to such
acquisitions under subsections (a) and (b);
``(2) Judicial review.--The procedures adopted in
accordance with paragraph (1) shall be subject to judicial
review pursuant to subsection (i).
``(e) Civil Liberties and Privacy Protection Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt civil liberties and privacy protection procedures that
are reasonably designed to--
``(A) minimize the impact of any acquisition
authorized by (a) on the privacy and civil liberties of
United States persons; and
``(B) reasonably limit the receipt, retention, use,
and disclosure of communications records associated
with a specific person when such records are not
necessary to understand foreign intelligence
information or assess the importance of such
information.
``(2) Judicial review.--The civil liberties and privacy
protection procedures adopted in accordance with paragraph (1)
shall be subject to judicial review pursuant to subsection (i).
``(f) Guidelines for Compliance With Limitations.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt guidelines to ensure--
``(A) compliance with the requirements and
limitations under subsections (a) and (b); and
``(B) that an application for a court order is
filed as required by this title.
``(2) Submission of guidelines.--The Attorney General shall
provide the guidelines adopted in accordance with paragraph
(1)--
``(A) the congressional intelligence committees;
``(B) the Committees on the Judiciary of the Senate
and the House of Representatives; and
``(C) the Foreign Intelligence Surveillance Court.
``(g) Certification.--
``(1) In general.--
``(A) Requirement to submit certification.--Subject
to subparagraph (B), prior to the implementation of an
authorization under subsection (a), the Attorney
General and the Director of National Intelligence shall
provide to the Foreign Intelligence Surveillance Court
a written certification and any supporting affidavit,
under oath and under seal, in accordance with this
subsection.
``(B) Exception.--If the Attorney General and the
Director of National Intelligence make a determination
under subsection (c)(2) and time does not permit the
submission of a certification under this subsection
prior to the implementation of an authorization under
subsection (a), the Attorney General and the Director
of National Intelligence shall submit to the Court a
certification for such authorization as soon as
practicable but in no event later than 7 days after
such determination is made.
``(2) Certification requirements.--A certification made
under this subsection shall--
``(A) attest that--
``(i) procedures have been approved, have
been submitted for approval, or will be
submitted with the certification for approval
by the Foreign Intelligence Surveillance Court
that are reasonably designed to ensure
compliance with the requirements and
limitations under subsections (a) and (b);
``(ii) the civil liberties and privacy
protection procedures to be used with respect
to such acquisition--
``(I) meet the requirements of
civil liberties and privacy protection
procedures adopted under subsection
(e); and
``(II) have been approved, have
been submitted for approval, or will be
submitted with the certification for
approval by the Foreign Intelligence
Surveillance Court;
``(iii) guidelines have been adopted in
accordance with subsection (f) to ensure
compliance with the limitations in subsection
(b) and to ensure that an application for a
court order is filed as required by this
chapter;
``(iv) the procedures and guidelines
referred to in clauses (i), (ii), and (iii) are
consistent with the requirements of the fourth
amendment to the Constitution of the United
States;
``(v) a significant purpose of the
acquisition is to obtain foreign intelligence
information;
``(vi) the acquisition involves obtaining
foreign intelligence information from or with
the assistance of an electronic communications
service provider; and
``(vii) the acquisition complies with the
limitations in subsection (b);
``(B) include the procedures adopted in accordance
with subsections (d) and (e);
``(C) be supported, as appropriate, by the
affidavit of any appropriate official in the area of
national security who is--
``(i) appointed by the President, by and
with the advice and consent of the Senate; or
``(ii) the head of an element of the
intelligence community;
``(D) include--
``(i) an effective date for the
authorization that is at least 30 days after
the submission of the written certification to
the court; or
``(ii) if the acquisition has begun or the
effective date is less than 30 days after the
submission of the written certification to the
court, the date the acquisition began or the
effective date for the acquisition; and
``(E) if the Attorney General and the Director of
National Intelligence make a determination under
subsection (c)(2), include a statement that such
determination has been made.
``(3) Change in effective date.--The Attorney General and
the Director of National Intelligence may advance or delay the
effective date referred to in paragraph (2)(D) by submitting an
amended certification in accordance with subsection (i)(1)(C)
to the Foreign Intelligence Surveillance Court for review
pursuant to subsection (i).
``(4) Maintenance of certification.--The Attorney General
or a designee of the Attorney General shall maintain a copy of
a certification made under this subsection.
``(5) Judicial review.--A certification submitted in
accordance with this subsection shall be subject to judicial
review pursuant to subsection (i).
``(h) Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director of
National Intelligence may direct, in writing, an electronic
communications service provider to--
``(A) immediately provide the Government with
records, whether existing or created in the future, in
the format specified by the Government and in a manner
that will protect the secrecy of the acquisition; and
``(B) maintain under security procedures approved
by the Attorney General and the Director of National
Intelligence any records concerning the aid furnished
that such electronic communication service provider
retains.
``(2) Compensation and assistance.--The Government shall
compensate, at the prevailing rate, an electronic
communications service provider for providing records in
accordance with directives issued pursuant to paragraph (1).
The Government may provide any information, facilities, or
assistance necessary to aid an electronic communications
service provider in complying with a directive issued pursuant
to paragraph (1).
``(3) Record requirement.--For any directive issued under
paragraph (1), the Attorney General shall retain a record of
the information indicating that, at the time the directive was
issued, the directive complied with the selection procedures
established by subsection (d).
``(4) Judicial review.--
``(A) Requirement to provide directives and
supporting records.--The Attorney General shall
promptly provide to the court established by section
103(a) a copy of each directive issued under paragraph
(1) and a copy of each record prepared under paragraph
(3).
``(B) Remedy for improper directives.--The court
shall promptly consider each directive and record
provided under subparagraph (A), and if the court finds
that a record prepared under paragraph (3) does not
meet the requirements of the selection procedures
established by subsection (d), the court may order that
the production of records under the applicable
directive be terminated or modified, that the
information produced in response to the directive be
destroyed, or another appropriate remedy.
``(5) Challenging of directives.--
``(A) Authority to challenge.--An electronic
communications service provider receiving a directive
issued pursuant to paragraph (1) may file a petition to
modify or set aside such directive with the Foreign
Intelligence Surveillance Court, which shall have
jurisdiction to review such petition.
``(B) Assignment.--The presiding judge of the Court
shall assign a petition filed under subparagraph (A) to
1 of the judges serving in the pool established under
section 103(e)(1) not later than 24 hours after the
filing of such petition.
``(C) Standards for review.--A judge considering a
petition filed under subparagraph (A) may grant such
petition only if the judge finds that the directive
does not meet the requirements of this section or is
otherwise unlawful.
``(D) Procedures for initial review.--A judge shall
conduct an initial review of a petition filed under
subparagraph (A) not later than 5 days after being
assigned such petition. If the judge determines that
such petition consists of claims, defenses, or other
legal contentions that are not warranted by existing
law or consists of a frivolous argument for extending,
modifying, or reversing existing law or for
establishing new law, the judge shall immediately deny
such petition and affirm the directive or any part of
the directive that is the subject of such petition and
order the recipient to comply with the directive or any
part of it. Upon making a determination under this
subparagraph or promptly thereafter, the judge shall
provide a written statement for the record of the
reasons for such determination.
``(E) Procedures for plenary review.--If a judge
determines that a petition filed under subparagraph (A)
requires plenary review, the judge shall affirm,
modify, or set aside the directive that is the subject
of such petition not later than 30 days after being
assigned such petition. If the judge does not set aside
the directive, the judge shall immediately affirm or
affirm with modifications the directive, and order the
recipient to comply with the directive in its entirety
or as modified. The judge shall provide a written
statement for the record of the reasons for a
determination under this subparagraph.
``(F) Continued effect.--Any directive not
explicitly modified or set aside under this paragraph
shall remain in full effect.
``(G) Contempt of court.--Failure to obey an order
issued under this paragraph may be punished by the
Court as contempt of court.
``(6) Enforcement of directives.--
``(A) Order to compel.--If an electronic
communications service provider fails to comply with a
directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to
compel the service to comply with the directive with
the Foreign Intelligence Surveillance Court, which
shall have jurisdiction to review such petition.
``(B) Assignment.--The presiding judge of the Court
shall assign a petition filed under subparagraph (A) to
1 of the judges serving in the pool established under
section 103(e)(1) not later than 24 hours after the
filing of such petition.
``(C) Procedures for review.--A judge considering a
petition filed under subparagraph (A) shall, not later
than 30 days after being assigned such petition, issue
an order requiring the electronic communications
service provider to comply with the directive or any
part of it, as issued or as modified, if the judge
finds that the directive meets the requirements of this
section and is otherwise lawful. The judge shall
provide a written statement for the record of the
reasons for a determination under this paragraph.
``(D) Contempt of court.--Failure to obey an order
issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph
may be served in any judicial district in which the
electronic communications service provider may be
found.
``(7) Appeal.--
``(A) Appeal to the court of review.--The
Government or an electronic communications service
provider receiving a directive issued pursuant to
paragraph (1) may file a petition with the Foreign
Intelligence Surveillance Court of Review for review of
a decision issued pursuant to paragraph (4) or (5). The
Court of Review shall have jurisdiction to consider
such petition and shall provide a written statement for
the record of the reasons for a decision under this
subparagraph.
``(B) Certiorari to the supreme court.--The
Government or an electronic communications service
provider receiving a directive issued pursuant to
paragraph (1) may file a petition for a writ of
certiorari for review of a decision of the Court of
Review issued under subparagraph (A). The record for
such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(8) Rule of construction.--Nothing in this subsection
shall be construed to prevent a directive issued under
paragraph (1) from requiring an electronic communications
service provider to produce additional records, whether
existing or created in the future, based on records produced by
a previous directive issued under paragraph (1).
``(i) Judicial Review of Certifications and Procedures.--
``(1) In general.--
``(A) Review by the foreign intelligence
surveillance court.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to review a
certification submitted in accordance with subsection
(g) and the selection and civil liberties and privacy
protection procedures adopted in accordance with
subsections (d) and (e), and amendments to such
certification or such procedures.
``(B) Time period for review.--The Court shall
review a certification submitted in accordance with
subsection (g) and the selection and civil liberties
and privacy protection procedures adopted in accordance
with subsections (d) and (e) and shall complete such
review and issue an order under paragraph (3) not later
than 30 days after the date on which such certification
and such procedures are submitted.
``(C) Amendments.--The Attorney General and the
Director of National Intelligence may amend a
certification submitted in accordance with subsection
(g) or the selection and civil liberties and privacy
protection procedures adopted in accordance with
subsections (d) and (e) as necessary at any time,
including if the Court is conducting or has completed
review of such certification or such procedures, and
shall submit the amended certification or amended
procedures to the Court not later than 7 days after
amending such certification or such procedures. The
Court shall review any amendment under this
subparagraph under the procedures set forth in this
subsection. The Attorney General and the Director of
National Intelligence may authorize the use of an
amended certification or amended procedures pending the
Court's review of such amended certification or amended
procedures.
``(2) Review.--The Court shall review the following:
``(A) Certification.--A certification submitted in
accordance with subsection (g) to determine whether the
certification contains all the required elements.
``(B) Selection procedures.--The selection
procedures adopted in accordance with subsection (d) to
assess whether the procedures are reasonably designed
to meet the requirements of subsection (d).
``(C) Civil liberties and privacy protection
procedures.--The civil liberties and privacy protection
procedures adopted in accordance with subsection (e) to
assess whether such procedures meet the requirements of
subsection (e).
``(3) Orders.--
``(A) Approval.--If the Court finds that a
certification submitted in accordance with subsection
(g) contains all the required elements and that the
selection and civil liberties and privacy protection
procedures adopted in accordance with subsections (d)
and (e) are consistent with the requirements of those
subsections and with the fourth amendment to the
Constitution of the United States, the Court shall
enter an order approving the certification and the use,
or continued use in the case of an acquisition
authorized pursuant to a determination under subsection
(c)(2), of the procedures for the acquisition.
``(B) Correction of deficiencies.--If the Court
finds that a certification submitted in accordance with
subsection (g) does not contain all the required
elements, or that the procedures adopted in accordance
with subsections (d) and (e) are not consistent with
the requirements of those subsections or the fourth
amendment to the Constitution of the United States, the
Court shall issue an order directing the Government to,
at the Government's election and to the extent required
by the Court's order--
``(i) correct any deficiency identified by
the Court's order not later than 30 days after
the date on which the Court issues the order;
or
``(ii) cease, or not begin, the
implementation of the authorization for which
such certification was submitted.
``(C) Requirement for written statement.--In
support of an order under this subsection, the Court
shall provide, simultaneously with the order, for the
record a written statement of the reasons for the
order.
``(4) Appeal.--
``(A) Appeal to the court of review.--The
Government may file a petition with the Foreign
Intelligence Surveillance Court of Review for review of
an order under this subsection. The Court of Review
shall have jurisdiction to consider such petition. For
any decision under this subparagraph affirming,
reversing, or modifying an order of the Foreign
Intelligence Surveillance Court, the Court of Review
shall provide for the record a written statement of the
reasons for the decision.
``(B) Continuation of acquisition pending rehearing
or appeal.--Any acquisition affected by an order under
paragraph (3)(B) may continue--
``(i) during the pendency of any rehearing
of the order by the Court en banc; and
``(ii) if the Government files a petition
for review of an order under this section,
until the Court of Review enters an order under
subparagraph (C).
``(C) Implementation pending appeal.--Not later
than 60 days after the filing of a petition for review
of an order under paragraph (3)(B) directing the
correction of a deficiency, the Court of Review shall
determine, and enter a corresponding order regarding,
whether all or any part of the correction order, as
issued or modified, shall be implemented during the
pendency of the review.
``(D) Certiorari to the supreme court.--The
Government may file a petition for a writ of certiorari
for review of a decision of the Court of Review issued
under subparagraph (A). The record for such review
shall be transmitted under seal to the Supreme Court of
the United States, which shall have jurisdiction to
review such decision.
``(5) Schedule.--
``(A) Reauthorization of authorizations in
effect.--If the Attorney General and the Director of
National Intelligence seek to reauthorize or replace an
authorization issued under subsection (a), the Attorney
General and the Director of National Intelligence
shall, to the extent practicable, submit to the Court
the certification prepared in accordance with
subsection (g) and the procedures adopted in accordance
with subsections (d) and (e) at least 30 days prior to
the expiration of such authorization.
``(B) Reauthorization of orders, authorizations,
and directives.--If the Attorney General and the
Director of National Intelligence seek to reauthorize
or replace an authorization issued under subsection (a)
by filing a certification pursuant to subparagraph (A),
that authorization, and any directives issued
thereunder and any order related thereto, shall remain
in effect, notwithstanding the expiration provided for
in subsection (a), until the Court issues an order with
respect to such certification under paragraph (3) at
which time the provisions of that paragraph and
paragraph (4) shall apply with respect to such
certification.
``(j) Judicial Proceedings.--
``(1) Expedited judicial proceedings.--Judicial proceedings
under this section shall be conducted as expeditiously as
possible.
``(2) Time limits.--A time limit for a judicial decision in
this section shall apply unless the Court, the Court of Review,
or any judge of either the Court or the Court of Review, by
order for reasons stated, extends that time as necessary for
good cause in a manner consistent with national security.
``(k) Maintenance and Security of Records and Proceedings.--
``(1) Standards.--The Foreign Intelligence Surveillance
Court shall maintain a record of a proceeding under this
section, including petitions, appeals, orders, and statements
of reasons for a decision, under security measures adopted by
the Chief Justice of the United States, in consultation with
the Attorney General and the Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the Court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--The Attorney General and the
Director of National Intelligence shall retain a directive or
an order issued under this section for a period of not less
than 10 years from the date on which such directive or such
order is issued.
``(l) Assessments and Reviews.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the selection and
civil liberties and privacy protection procedures adopted in
accordance with subsections (d) and (e) and the guidelines
adopted in accordance with subsection (f). The assessment shall
also include the aggregate number of directives issued under
subsection (h) during the relevant time period. The Attorney
General and Director of National Intelligence shall submit each
assessment to--
``(A) the Foreign Intelligence Surveillance Court;
and
``(B) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and
Senate Resolution 400 of the 94th Congress or any
successor Senate resolution--
``(i) the congressional intelligence
committees; and
``(ii) the Committees on the Judiciary of
the House of Representatives and the Senate.
``(2) Agency assessment.--The Inspector General of the
Department of Justice and the Inspector General of each element
of the intelligence community authorized to acquire
communications records under subsection (a), with respect to
the department or element of such Inspector General--
``(A) are authorized to review compliance with the
selection and civil liberties and privacy protection
procedures adopted in accordance with subsections (d)
and (e) and the guidelines adopted in accordance with
subsection (f);
``(B) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National
Intelligence; and
``(iii) consistent with the Rules of the
House of Representatives, the Standing Rules of
the Senate, and Senate Resolution 400 of the
94th Congress or any successor Senate
resolution--
``(I) the congressional
intelligence committees; and
``(II) the Committees on the
Judiciary of the House of
Representatives and the Senate.
``(m) Definitions.--In this section:
``(1) The terms `contents', `wire communication', and
`electronic communication' have the meaning given such terms in
section 2510 of title 18, United States Code.
``(2) The term `electronic communication service provider'
has the meaning given such term in section 701.
``(3) The terms `foreign power' and `agent of a foreign
power' have the meanings given such terms in section 101.''.
(b) Clerical Amendment.--The table of contents in the first section
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
note) is amended by inserting after the item relating to section 502
the following new item:
``Sec. 503. Procedures for targeted acquisitions of terrorist and
foreign agent non-content communications
records.''.
(c) Conforming Amendment.--Section 802(a)(3) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1885a) is amended by
striking ``or 702(h)'' and inserting ``503(h), or 702(h)''.
SEC. 12. CONTINUOUS EVALUATION AND SHARING OF DEROGATORY INFORMATION
REGARDING PERSONNEL WITH ACCESS TO CLASSIFIED
INFORMATION.
Section 102A(j) of the National Security Act of 1947 (50 U.S.C.
3024(j)) is amended--
(1) in the heading, by striking ``Sensitive Compartmented
Information'' and inserting ``Classified Information'';
(2) in paragraph (3), by striking ``; and'' and inserting a
semicolon;
(3) in paragraph (4), by striking the period and inserting
a semicolon; and
(4) by adding at the end the following new paragraphs:
``(5) ensure that the background of each employee or
officer of an element of the intelligence community, each
contractor to an element of the intelligence community, and
each individual employee of such a contractor who has been
determined to be eligible for access to classified information
is monitored on a continual basis under standards developed by
the Director, including with respect to the frequency of
evaluation, during the period of eligibility of such employee
or officer of an element of the intelligence community, such
contractor, or such individual employee to such a contractor to
determine whether such employee or officer of an element of the
intelligence community, such contractor, and such individual
employee of such a contractor continues to meet the
requirements for eligibility for access to classified
information; and
``(6) develop procedures to require information sharing
between elements of the intelligence community concerning
potentially derogatory security information regarding an
employee or officer of an element of the intelligence
community, a contractor to an element of the intelligence
community, or an individual employee of such a contractor that
may impact the eligibility of such employee or officer of an
element of the intelligence community, such contractor, or such
individual employee of such a contractor for a security
clearance.''.
SEC. 13. REQUIREMENTS FOR INTELLIGENCE COMMUNITY CONTRACTORS.
(a) Requirements.--Section 102A of the National Security Act of
1947 (50 U.S.C. 3024) is amended by adding at the end the following new
subsection:
``(x) Requirements for Intelligence Community Contractors.--The
Director of National Intelligence, in consultation with the head of
each department of the Federal Government that contains an element of
the intelligence community and the Director of the Central Intelligence
Agency, shall--
``(1) ensure that--
``(A) any contractor to an element of the
intelligence community with access to a classified
network or classified information develops and operates
a security plan that is consistent with standards
established by the Director of National Intelligence
for intelligence community networks; and
``(B) each contract awarded by an element of the
intelligence community includes provisions requiring
the contractor comply with such plan and such
standards;
``(2) conduct periodic assessments of each security plan
required under paragraph (1)(A) to ensure such security plan
complies with the requirements of such paragraph; and
``(3) ensure that the insider threat detection capabilities
and insider threat policies of the intelligence community apply
to facilities of contractors with access to a classified
network.''.
(b) Applicability.--The amendment made by subsection (a) shall
apply with respect to contracts entered into or renewed after the date
of the enactment of this Act.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Intelligence (Permanent Select), and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Intelligence (Permanent Select), and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
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