[Congressional Bills 113th Congress]
[From the U.S. Government Printing Office]
[S. 1631 Placed on Calendar Senate (PCS)]
Calendar No. 235
113th CONGRESS
1st Session
S. 1631
To consolidate the congressional oversight provisions of the Foreign
Intelligence Surveillance Act of 1978 and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 31, 2013
Mrs. Feinstein, from the Select Committee on Intelligence, reported the
following original bill; which was read twice and placed on the
calendar
_______________________________________________________________________
A BILL
To consolidate the congressional oversight provisions of the Foreign
Intelligence Surveillance Act of 1978 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 Improvements Act of 2013''.
SEC. 2. SUPPLEMENTAL PROCEDURES FOR ACQUISITION OF CERTAIN BUSINESS
RECORDS FOR COUNTERTERRORISM PURPOSES.
(a) Supplemental Procedures for Acquisition of Certain Business
Records for International Terrorism Investigations.--Section 501 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is
amended by adding at the end the following:
``(i) General Prohibition on Bulk Collection of Communication
Records.--No order issued pursuant to an application made under
subsection (a) may authorize the acquisition in bulk of wire
communication or electronic communication records from an entity that
provides an electronic communication service to the public if such
order does not name or otherwise identify either individuals or
facilities, unless such order complies with the supplemental procedures
under subsection (j).
``(j) Authorization for Bulk Collection of Non-content Metadata.--
``(1) Supplemental procedures.--Any order directed to the
Government under subsection (a) that authorizes the acquisition
in bulk of wire communication or electronic communication
records, which shall not include the content of such
communications, shall be subject to supplemental procedures,
which are in addition to any other requirements or procedures
imposed by this Act, as follows:
``(A) Content prohibition.--Such an order shall not
authorize the acquisition of the content of any
communication.
``(B) Authorization and renewal periods.--Such an
order--
``(i) shall be effective for a period of
not more than 90 days; and
``(ii) may be extended by the court on the
same basis as an original order upon an
application under this title for an extension
and new findings by the court in accordance
with subsection (c).
``(C) Security procedures for acquired data.--
Information acquired pursuant to such an order (other
than information properly returned in response to a
query under subparagraph (D)(iii)) shall be retained by
the Government in accordance with security procedures
approved by the court in a manner designed to ensure
that only authorized personnel will have access to the
information in the manner prescribed by this section
and the court's order.
``(D) Limited access to data.--Access to
information retained in accordance with the procedures
described in subparagraph (C) shall be prohibited,
except for access--
``(i) to perform a query using a selector
for which a recorded determination has been
made that there is a reasonable articulable
suspicion that the selector is associated with
international terrorism or activities in
preparation therefor;
``(ii) to return information as authorized
under paragraph (3); or
``(iii) as may be necessary for technical
assurance, data management or compliance
purposes, or for the purpose of narrowing the
results of queries, in which case no
information produced pursuant to the order may
be accessed, used, or disclosed for any other
purpose, unless the information is responsive
to a query authorized under paragraph (3).
``(2) Record requirement.--
``(A) Determination.--For any determination made
pursuant to paragraph (1)(D)(i), a record shall be
retained of the selector, the identity of the
individual who made the determination, the date and
time of the determination, and the information
indicating that, at the time of the determination,
there was a reasonable articulable suspicion that the
selector was associated with international terrorism or
activities in preparation therefor.
``(B) Query.--For any query performed pursuant to
paragraph (1)(D)(i), a record shall be retained of the
identity of the individual who made the query, the date
and time of the query, and the selector used to perform
the query.
``(3) Scope of permissible query return information.--For
any query performed pursuant to paragraph (1)(D)(i), the query
only may return information concerning communications--
``(A) to or from the selector used to perform the
query;
``(B) to or from a selector in communication with
the selector used to perform the query; or
``(C) to or from any selector reasonably linked to
the selector used to perform the query, in accordance
with the court approved minimization procedures
required under subsection (g).
``(4) Limits on personnel authorized to make determinations
or perform queries.--A court order issued pursuant to an
application made under subsection (a), and subject to the
requirements of this subsection, shall impose strict,
reasonable limits, consistent with operational needs, on the
number of Government personnel authorized to make a
determination or perform a query pursuant to paragraph
(1)(D)(i). The Director of National Intelligence shall ensure
that each such personnel receives comprehensive training on the
applicable laws, policies, and procedures governing such
determinations and queries prior to exercising such authority.
``(5) Automated reporting.--
``(A) Requirement for automated reporting.--The
Director of the National Intelligence, in consultation
with the head of the agency responsible for
acquisitions pursuant to orders subject to the
requirements of this subsection, shall establish a
technical procedure whereby the aggregate number of
queries performed pursuant to this subsection in the
previous quarter shall be recorded automatically, and
subsequently reported to the appropriate committees of
Congress.
``(B) Availability upon request.--The information
reported under subparagraph (A) shall be available to
each of the following upon request:
``(i) The Inspector General of the National
Security Agency.
``(ii) The Inspector General of the
Intelligence Community.
``(iii) The Inspector General of the
Department Justice.
``(iv) Appropriate officials of the
Department of Justice.
``(v) Appropriate officials of the National
Security Agency.
``(vi) The Privacy and Civil Liberties
Oversight Board.
``(6) Court review of records.--
``(A) Requirement to provide records.--In
accordance with minimization procedures required by
subsection (g), and subject to subparagraph (B), a copy
of each record for a determination prepared pursuant to
paragraph (2)(A) shall be promptly provided to the
court established under section 103(a).
``(B) Records associated with united states
persons.--In accordance with minimization procedures
required by subsection (g), a copy of each record for a
determination prepared pursuant to paragraph (2)(A)
that is reasonably believed to be associated with a
particular, known United States person shall be
promptly provided the court established under section
103(a), but no more than 7 days after the
determination.
``(C) Remedy for improper determinations.--If the
court finds that the record of the determination
indicates the determination did not meet the
requirements of this section or is otherwise unlawful,
the court may order that production of records under
the applicable order be terminated or modified, that
the information returned in response to queries using
the selector identified in the determination be
destroyed, or another appropriate remedy.
``(7) Record retention and query restrictions.--
``(A) Record retention.--All records and
information produced pursuant to an order subject to
this subsection, other than the results of queries as
described in paragraph (3), shall be retained no longer
than 5 years from the date of acquisition.
``(B) Query restrictions.--The Government shall not
query any data acquired under this subsection and
retained in accordance with the procedures described in
paragraph (1)(C) more than 3 years after such data was
acquired unless the Attorney General determines that
the query meets the standard set forth in paragraph
(1)(D)(i).
``(8) Congressional oversight.--A copy of each order issued
pursuant to an application made under subsection (a), and
subject to the requirements of this subsection, shall be
provided to the appropriate committees of Congress.
``(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) Content.--The term `content', with respect to
a communication--
``(i) means any information concerning the
substance, purport, or meaning of that
communication; and
``(ii) does not include any dialing,
routing, addressing, signaling information.
``(C) Electronic communication.--The term
`electronic communication' has the meaning given that
term in section 2510 of title 18, United States Code.
``(D) Electronic communication service.--The term
`electronic communication service' has the meaning
given that term in section 2510 of title 18, United
States Code.
``(E) Selector.--The term `selector' means an
identifier, such as a phone number or electronic
account identifier, that is associated with a
particular communicant or facility.
``(F) United states person.--The term `United
States person' has the meaning given that term in
section 101 of this Act.
``(G) Wire communication.--The term `wire
communication' has the meaning given that term in
section 2510 of title 18, United States Code.''.
(b) Annual Unclassified Report.--Section 502(c)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1862(c)(1)) is
amended--
(1) in subparagraph (A), by striking ``and'' at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(C) for each order subject to the supplemental procedures
under section 501(j)--
``(i) the number of unique selectors for which a
recorded determination has been made under section
501(j)(1)(D)(i) that reasonable articulable suspicion
exists that the selector is associated with
international terrorism or activities in preparation
therefor;
``(ii) the aggregate number of queries performed
pursuant to such section;
``(iii) the aggregate number of investigative leads
developed as a direct result of any query performed
pursuant to subsection (j)(1)(D)(i); and
``(iv) the aggregate number of warrants or court
orders, based upon a showing of probable cause, issued
pursuant to title I or III of this Act or chapter 119,
121, or 205 of title 18, United States Code, in
response to applications for such warrants or court
orders containing information produced by such
queries.''.
SEC. 3. ENHANCED CRIMINAL PENALTIES FOR UNAUTHORIZED ACCESS TO
COLLECTED DATA.
Section 1030 of title 18, United States Code, is amended as
follows:
(1) Subsection (a) is amended--
(A) in paragraph (5)(C), by striking the period at
the end and inserting a semicolon;
(B) in paragraph (7)(C), by adding ``or'' at the
end; and
(C) by inserting after paragraph (7)(C) the
following:
``(8) accesses a computer without authorization or exceeds
authorized access and thereby obtains information from any
department or agency of the United States knowing or having
reason to know that such computer was operated by or on behalf
of the United States and that such information was acquired by
the United States pursuant to the Foreign Intelligence
Surveillance Act (50 U.S.C. 1801 et seq.) pursuant to an order
issued by a court established under section 103 of that Act (50
U.S.C. 1803).''.
(2) Subsection (c) is amended--
(A) in paragraph (4)(G)(ii), by striking the period
at the end and inserting a semicolon and ``or''; and
(B) by adding at the end the following:
``(5) a fine under this title, imprisonment for not more
than 10 years, or both, in the case of an offense under
subsection (a)(8) of this section.''.
SEC. 4. 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) is
authorized, 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) 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 702 of this
Act; or
``(III) a notice of non-compliance
with any such order, certification, or
procedures.
``(3) 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 national security
information, including sensitive compartmented 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.
``(4) 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.
``(5) 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.
``(6) 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).
``(7) 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.
``(8) 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.
``(9) Congressional oversight.--The Attorney General shall
submit to the appropriate committees of Congress an annual
report on the number of notices described in paragraph (6)
received by Attorney General for the preceding 12-month
period.''.
SEC. 5. CONSOLIDATION OF CONGRESSIONAL OVERSIGHT PROVISIONS UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Repeal of Congressional Oversight Provisions.--
(1) Repeal.--The Foreign Intelligence Surveillance Act of
1978 is amended by striking sections 107, 108, 306, and 406 (50
U.S.C. 1807, 1808, 1826, and 1846).
(2) Table of contents amendment.--The table of contents in
the first section of the Foreign Intelligence Surveillance Act
of 1978 is amended by striking the items relating to sections
107, 108, 306, and 406.
(b) Semiannual Report of the Attorney General.--Section 601 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871) is
amended to read as follows:
``SEC. 601. SEMIANNUAL REPORT OF THE ATTORNEY GENERAL.
``(a) In General.--
``(1) Information.--On a semiannual basis, the Attorney
General shall submit to the appropriate committees of Congress
a report pursuant to paragraph (2) concerning all electronic
surveillance, physical searches, and uses of pen registers and
trap and trace devices conducted under this Act.
``(2) Report.--The report required by paragraph (1) shall
include the following:
``(A) Electronic surveillance.--The total number
of--
``(i) applications made for orders
approving electronic surveillance under this
Act;
``(ii) such orders either granted,
modified, or denied;
``(iii) proposed applications for orders
for electronic surveillance submitted pursuant
to Rule 9(a) of the Rules of Procedure for the
Foreign Intelligence Surveillance Court, or any
successor rule, that are not formally presented
in the form of a final application under Rule
9(b) of the Rules of Procedure for the Foreign
Intelligence Surveillance Court, or any
successor rule;
``(iv) named United States person targets
of electronic surveillance;
``(v) emergency authorizations of
electronic surveillance granted under this Act
and the total number of subsequent orders
approving or denying such electronic
surveillance; and
``(vi) new compliance incidents arising
from electronic surveillance under this Act.
``(B) Physical searches.--The total number of--
``(i) applications made for orders
approving physical search under this Act;
``(ii) such orders either granted,
modified, or denied;
``(iii) proposed applications for orders
for physical searches submitted pursuant to
Rule 9(a) of the Rules of Procedure for the
Foreign Intelligence Surveillance Court, or any
successor rule, that are not formally presented
in the form of a final application under Rule
9(b) of the Rules of Procedure for the Foreign
Intelligence Surveillance Court, or any
successor rule;
``(iv) named United States person targets
of physical searches;
``(v) emergency authorizations of physical
searches granted under this Act and the total
number of subsequent orders approving or
denying such physical searches; and
``(vi) new compliance incidents arising
from physical searches under this Act.
``(C) Pen register and trap and trace devices.--The
total number of--
``(i) applications made for orders
approving the use of pen registers or trap and
trace devices under this Act;
``(ii) such orders either granted,
modified, or denied;
``(iii) proposed applications for orders
for pen registers or trap and trace devices
submitted pursuant to Rule 9(a) of the Rules of
Procedure for the Foreign Intelligence
Surveillance Court, or any successor rule, that
are not formally presented in the form of a
final application under Rule 9(b) of the Rules
of Procedure for the Foreign Intelligence
Surveillance Court, or any successor rule;
``(iv) named United States person targets
of pen registers or trap and trace devices;
``(v) emergency authorizations of the use
of pen registers or trap and trace devices
granted under this Act and the total number of
subsequent orders approving or denying such use
of pen registers or trap and trace devices; and
``(vi) new compliance incidents arising
from the use of pen registers or trap and trace
devices under this Act.
``(D) Compliance incidents.--A summary of each
compliance incident reported under subparagraphs
(A)(vi), (B)(vi), and (C)(vi).
``(E) Significant legal interpretations.--A summary
of significant legal interpretations of this Act
involving matters before the Foreign Intelligence
Surveillance Court or the Foreign Intelligence
Surveillance Court of Review, including interpretations
presented in applications or pleadings filed with the
Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review.
``(b) Submissions of Significant Decisions, Orders, and Opinions.--
The Attorney General shall submit to the appropriate committees of
Congress a copy of any decision, order, or opinion issued by the
Foreign Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review that includes a significant construction
or interpretation of any provision of this Act, and any pleadings,
applications, or memoranda of law associated with such decision, order,
or opinion, not later than 45 days after such decision, order, or
opinion is issued.
``(c) Protection of National Security.--The Director of National
Intelligence, in consultation with the Attorney General, may authorize
redactions of materials described in subsection (b) that are provided
to the appropriate committees of Congress if such redactions are
necessary to protect properly classified information.
``(d) Availability to Members of Congress.--Consistent with the
rules and practices of the Senate and the House of Representatives,
each report submitted pursuant to subsection (a)(2) and each submission
made pursuant to subsection (b) shall be made available to every member
of Congress, subject to appropriate procedures for the storage and
handling of classified information.
``(e) Public Report.--
``(1) In general.--Subject to paragraph (2), the Attorney
General, in consultation with the Director of National
Intelligence, shall make available to the public an
unclassified annual summary of the reports submitted under
subsection (a) that, to the maximum extent practicable
consistent with the protection of classified information,
includes the information contained in the report submitted
pursuant to subsection (a)(2).
``(2) Minimum requirements.--In each report made available
to the public under paragraph (1), the Attorney General shall
include, at a minimum, the information required under
subparagraphs (A), (B), and (C) of subsection (a)(2), which may
be presented as annual totals.
``(f) Construction.--Nothing in this title may be construed to
limit the authority and responsibility of an appropriate committee of
Congress to obtain any information required by such committee to carry
out its functions and duties.
``(g) Definitions.--In this section:
``(1) Appropriate committees of congress.--The term
`appropriate committees of Congress' means--
``(A) the Select Committee on Intelligence and the
Committee on the Judiciary of the Senate; and
``(B) the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the
House of Representatives.
``(2) Electronic surveillance.--The term `electronic
surveillance' has the meaning given that term in section 101 of
this Act.
``(3) Foreign intelligence surveillance court.--The term
`Foreign Intelligence Surveillance Court' means the court
established under section 103(a) of this Act.
``(4) Foreign intelligence surveillance court of review.--
The term `Foreign Intelligence Surveillance Court of Review'
means the court established under section 103(b) of this Act.
``(5) Pen register.--The term `pen register' has the
meaning given that term in section 401 of this Act.
``(6) Physical search.--The term `physical search' has the
meaning given that term in section 301 of this Act.
``(7) Trap and trace device.--The term `trap and trace
device' has the meaning given that term in section 401 of this
Act.
``(8) United states person.--The term `United States
person' has the meaning given that term in section 101 of this
Act.''.
(c) Availability or Reports and Submissions.--
(1) In general.--Title VI of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1871) is amended by adding
after section 601 the following:
``SEC. 602. AVAILABILITY OF REPORTS AND SUBMISSIONS.
``(a) Availability to Members of Congress.--Consistent with the
rules and practices of the Senate and the House of Representatives,
each submission to Congress made pursuant to section 502(b), 702(l)(1),
or 707 shall be made available, to every member of Congress, subject to
appropriate procedures for the storage and handling of classified
information.
``(b) Public Report.--The Attorney General or the Director of
National Intelligence, as appropriate, shall make available to the
public unclassified reports that, to the maximum extent practicable
consistent with the protection of classified information, include the
information contained in each submission to Congress made pursuant to
section 502(b), 702(l)(1), or 707.''.
(2) Table of contents amendment.--The table of contents in
the first section of the Foreign Intelligence Surveillance Act
of 1978 is amended by inserting after the item relating to
section 601 the following:
``Sec. 602. Availability of reports and submissions.''.
SEC. 6. RESTRICTIONS ON QUERYING THE CONTENTS OF CERTAIN
COMMUNICATIONS.
Section 702 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1881a) is amended by adding at the end the following:
``(m) Queries.--
``(1) Limitation on query terms that identify a united
states person.--A query of the contents of communications
acquired under this section with a selector known to be used by
a United States person may be conducted by personnel of
elements of the Intelligence Community only if the purpose of
the query is to obtain foreign intelligence information or
information necessary to understand foreign intelligence
information or to assess its importance.
``(2) Record.--
``(A) In general.--For any query performed pursuant
to paragraph (1) a record shall be retained of the
identity of the Government personnel who performed the
query, the date and time of the query, and the
information indicating that the purpose of the query
was to obtain foreign intelligence information or
information necessary to understand foreign
intelligence information or to assess its importance.
``(B) Availability.--Each record prepared pursuant
to subparagraph (A) shall be made available to the
Department of Justice, the Office of the Director of
National Intelligence, appropriate Inspectors General,
the Foreign Intelligence Surveillance Court, and the
appropriate committees of Congress.
``(3) Construction.--Nothing in this subsection may be
construed--
``(A) to prohibit access to data collected under
this section as may be necessary for technical
assurance, data management or compliance purposes, or
for the purpose of narrowing the results of queries, in
which case no information produced pursuant to the
order may be accessed, used, or disclosed other than
for such purposes;
``(B) to limit the authority of a law enforcement
agency to conduct a query for law enforcement purposes
of the contents of communications acquired under this
section; or
``(C) to limit the authority of an agency to
conduct a query for the purpose of preventing a threat
to life or serious bodily harm to any person.
``(4) Definitions.--In this subsection:
``(A) Appropriate committees of congress.--The term
`appropriate committees of Congress' means--
``(i) the Select Committee on Intelligence
and the Committee on the Judiciary of the
Senate; and
``(ii) the Permanent Select Committee on
Intelligence and the Committee on the Judiciary
of the House of Representatives.''.
``(B) Content.--The term `content', with respect to
a communication--
``(i) means any information concerning the
substance, purport, or meaning of that
communication; and
``(ii) does not include any dialing,
routing, addressing, or signaling information.
``(C) Selector.--The term `selector' means an
identifier, such as a phone number or electronic
account identifier, that is associated with a
particular communicant or facility.''.
SEC. 7. TEMPORARY TARGETING OF PERSONS OTHER THAN UNITED STATES PERSONS
TRAVELING INTO THE UNITED STATES.
(a) In General.--Section 105 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805) is amended--
(1) by redesignating subsections (f), (g), (h), and (i) as
subsections (g), (h), (i), and (j), respectively; and
(2) by inserting after subsection (e) the following:
``(f)(1) Notwithstanding any other provision of this Act,
acquisition of foreign intelligence information by targeting a non-
United States person reasonably believed to be located outside the
United States that was lawfully initiated by an element of the
intelligence community may continue for a transitional period not to
exceed 72 hours from the time when it is recognized that the non-United
States person is reasonably believed to be located inside the United
States and that the acquisition is subject to this title or title III
of this Act, provided that the head of the element determines that
there exists an exigent circumstance and--
``(A) there is reason to believe that the target of the
acquisition has communicated or received or will communicate or
receive foreign intelligence information relevant to the
exigent circumstance; and
``(B) it is determined that a request for emergency
authorization from the Attorney General in accordance with the
terms of this Act is impracticable in light of the exigent
circumstance.
``(2) The Director of National Intelligence or the head of an
element of the intelligence community shall promptly notify the
Attorney General of the decision to exercise the authority under this
section and shall request emergency authorization from the Attorney
General pursuant to this Act as soon as practicable, to the extent such
request is warranted by the facts and circumstances.
``(3) Subject to subparagraph (4), the authority under this section
to continue acquisition of foreign intelligence information is limited
to 72 hours. However, if the Attorney General authorizes an emergency
acquisition pursuant to this Act, then acquisition of foreign
intelligence information may continue for the period of time that the
Attorney General's emergency authorization or any subsequent court
order authorizing the acquisition remains in effect.
``(4) The authority to acquire foreign intelligence information
under this subsection shall terminate upon any of the following,
whichever occurs first--
``(A) 72 hours have elapsed since the commencement of the
transitional period;
``(B) the Attorney General has directed that the
acquisition be terminated; or
``(C) the exigent circumstance is no longer reasonably
believed to exist.
``(5) If the Attorney General authorizes an emergency authorization
during the transitional period, the acquisition of foreign intelligence
shall continue during any transition to, and consistent with, the
Attorney General emergency authorization or court order.
``(6) Any information of or concerning unconsenting United States
persons acquired during the transitional period may only be
disseminated during the transitional period if necessary to
investigate, prevent, reduce, or eliminate the exigent circumstance or
if it indicates a threat of death or serious bodily harm to any person.
``(7) In the event that during the transition period a request for
an emergency authorization from the Attorney General pursuant to this
Act for continued acquisition of foreign intelligence is not approved
or an order from a court is not obtained to continue the acquisition,
information obtained during the transitional period shall not be
retained, except with the approval of the Attorney General if the
information indicates a threat of death or serious bodily harm to any
person.
``(8) The Attorney General shall assess compliance with the
requirements of paragraph (7).''.
(b) Notification of Emergency Employment of Electronic
Surveillance.--Section 106(j) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1806(j)) is amended by striking ``section
105(e)'' and inserting ``subsection (e) or (f) of section 105''.
SEC. 8. CONFIRMATION OF APPOINTMENT OF THE DIRECTOR OF THE NATIONAL
SECURITY AGENCY.
(a) Director of the National Security Agency.--Section 2 of the
National Security Agency Act of 1959 (50 U.S.C. 3602) is amended--
(1) by inserting ``(b)'' before ``There''; and
(2) by inserting before subsection (b), as so designated by
paragraph (1), the following:
``(a)(1) There is a Director of the National Security Agency.
``(2) The Director of the National Security Agency shall be
appointed by the President, by and with the advice and consent of the
Senate.
``(3) The Director of the National Security Agency shall be the
head of the National Security Agency and shall discharge such functions
and duties as are provided by this Act or otherwise by law or executive
order.''.
(b) Position of Importance and Responsibility.--The President may
designate the Director of the National Security Agency as a position of
importance and responsibility under section 601 of title 10, United
States Code.
(c) Effective Date and Applicability.--
(1) In general.--The amendments made by subsection (a)
shall take effect on the date of the enactment of this Act and
shall apply upon the earlier of--
(A) the date of the nomination by the President of
an individual to serve as the Director of the National
Security Agency, except that the individual serving as
such Director as of the date of the enactment of this
Act may continue to perform such duties after such date
of nomination and until the individual appointed as
such Director, by and with the advice and consent of
the Senate, assumes the duties of such Director; or
(B) the date of the cessation of the performance of
the duties of such Director by the individual
performing such duties as of the date of the enactment
of this Act.
(2) Positions of importance and responsibility.--Subsection
(b) shall take effect on the date of the enactment of this Act.
SEC. 9. PRESIDENTIAL APPOINTMENT AND SENATE CONFIRMATION OF THE
INSPECTOR GENERAL OF THE NATIONAL SECURITY AGENCY.
(a) In General.--The Inspector General Act of 1978 (5 U.S.C. App.)
is amended--
(1) in section 8G(a)(2), by striking ``the National
Security Agency,''; and
(2) in section 12--
(A) in paragraph (1), by striking ``or the Federal
Cochairpersons of the Commissions established under
section 15301 of title 40, United States Code'' and
inserting ``the Federal Cochairpersons of the
Commissions established under section 15301 of title
40, United States Code; or the Director of the National
Security Agency''; and
(B) in paragraph (2), by striking ``or the
Commissions established under section 15301 of title
40, United States Code'' and inserting ``the
Commissions established under section 15301 of title
40, United States Code, or the National Security
Agency''.
(b) Effective Date; Incumbent.--
(1) Effective date.--The amendments made by subsection (a)
shall take effect on the date on which the first Director of
the National Security Agency takes office on or after the date
of the enactment of this Act.
(2) Incumbent.--The individual serving as Inspector General
of the National Security Agency on the date of the enactment of
this Act shall be eligible to be appointed by the President to
a new term of service under section 3 of the Inspector General
Act of 1978 (5 U.S.C. App.), by and with the advice and consent
of the Senate.
SEC. 10. 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. 11. 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 10, 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 Improvements Act of 2013, 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 paragraphs (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 10, 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. 12. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD ENHANCEMENTS
RELATING TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Definitions.--In this section:
(1) Appropriate official.--The term ``appropriate
official'' means the appropriate official of an agency or
department of the United States who is responsible for
preparing or submitting a covered application.
(2) Board.--The term ``Board'' means the Privacy and Civil
Liberties Oversight Board established in section 1061 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (42
U.S.C. 2000ee).
(3) Covered application.--The term ``covered application''
means a submission to a FISA Court--
(A) that--
(i) presents a novel or significant
interpretation of the law; and
(ii) relates to efforts to protect the
United States from terrorism; and
(B) that is--
(i) a final application for an order under
title I, III, IV, or V of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) or section 703 or 704 of
that Act (50 U.S.C. 1881b and 1881c);
(ii) a review of a certification or
procedure under section 702 of that Act (50
U.S.C. 1881a); or
(iii) a notice of non-compliance with such
an order, certification, or procedures.
(4) FISA court.--The term ``FISA Court'' means a court
established under subsection (a) or (b) of section 103 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803).
(b) Notice of Submissions and Orders.--
(1) Submission to fisa court.--Notwithstanding any
provision of section 103 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803), if a covered
application is filed with a FISA Court, the appropriate
official shall provide such covered application to the Board
not later than the date of such filing, provided the provision
of such covered application does not delay any filing with a
FISA Court.
(2) FISA court orders.--Notwithstanding any provision of
section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803), the appropriate official shall provide
to the Board each order of a FISA Court related to a covered
application.
(c) Discretionary Assessment of the Board.--
(1) Notice of decision to conduct assessment.--Upon receipt
of a covered application under subsection (b)(1), the Board
shall--
(A) elect whether to conduct the assessment
described in paragraph (3); and
(B) submit to the appropriate official a notice of
the Board's election under subparagraph (A).
(2) Timely submission.--The Board shall in a timely manner
prepare and submit to the appropriate official--
(A) the notice described in paragraph (1)(B); and
(B) the associated assessment, if the Board elects
to conduct such an assessment.
(3) Content.--An assessment of a covered application
prepared by the Board shall address whether the covered
application is balanced with the need to protect privacy and
civil liberties, including adequate supervision and guidelines
to ensure protection of privacy and civil liberties.
(d) Annual Review.--The Board shall conduct an annual review of the
activities of the National Security Agency related to information
collection under the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).
(e) Provision of Communications Services and Office Space to
Certain Members of Privacy and Civil Liberties Oversight Board.--
Section 1061(g) of the Intelligence Reform and Terrorism Prevention Act
of 2004 (42 U.S.C. 2000ee(g)) is amended by adding at the end the
following:
``(5) Provision of communications services and office
space.--The Director of National Intelligence shall provide to
each member of the Board who resides more than 100 miles from
the District of Columbia such communications services and
office space as may be necessary for the member to access and
use classified information. Such services and office space
shall be located at an existing secure government or contractor
facility located within the vicinity of such member's place of
residence.''.
Calendar No. 235
113th CONGRESS
1st Session
S. 1631
_______________________________________________________________________
A BILL
To consolidate the congressional oversight provisions of the Foreign
Intelligence Surveillance Act of 1978 and for other purposes.
_______________________________________________________________________
October 31, 2013
Read twice and placed on the calendar
