[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6172 Engrossed Amendment Senate (EAS)]

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                  In the Senate of the United States,

                                                          May 14, 2020.
    Resolved, That the bill from the House of Representatives (H.R. 
6172) entitled ``An Act to amend the Foreign Intelligence Surveillance 
Act of 1978 to prohibit the production of certain business records, and 
for other purposes.'', do pass with the following

                              AMENDMENTS:

(1) In subsection (a)(2)(B) of section 602 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1872), as added by section 
301(b)(3), insert after ``section 103(i)'' the following: , a 
proceeding in the Foreign Intelligence Court of Review resulting from 
the petition of an amicus curiae under section 103(i)(7), or a 
proceeding in which an amicus curiae could have been appointed pursuant 
to section 103(i)(2)(A).

(2) In section 302, strike subsections (a) and (b) and insert the 
following:

    (a) Expansion of Appointment Authority.--
            (1) In general.--Section 103(i)(2) (50 U.S.C. 1803(i)(2)) 
        is amended--
                    (A) by striking subparagraph (A) and inserting the 
                following:
                    ``(A) shall appoint one or more individuals who 
                have been designated under paragraph (1), not less than 
                one of whom possesses privacy and civil liberties 
                expertise, unless the court finds that such a 
                qualification is inappropriate, to serve as amicus 
                curiae to assist the court in the consideration of any 
                application or motion for an order or review that, in 
                the opinion of the court--
                            ``(i) presents a novel or significant 
                        interpretation of the law, unless the court 
                        issues a finding that such appointment is not 
                        appropriate;
                            ``(ii) presents significant concerns with 
                        respect to the activities of a United States 
                        person that are protected by the first 
                        amendment to the Constitution of the United 
                        States, unless the court issues a finding that 
                        such appointment is not appropriate;
                            ``(iii) presents or involves a sensitive 
                        investigative matter, unless the court issues a 
                        finding that such appointment is not 
                        appropriate;
                            ``(iv) presents a request for approval of a 
                        new program, a new technology, or a new use of 
                        existing technology, unless the court issues a 
                        finding that such appointment is not 
                        appropriate;
                            ``(v) presents a request for 
                        reauthorization of programmatic surveillance, 
                        unless the court issues a finding that such 
                        appointment is not appropriate; or
                            ``(vi) otherwise presents novel or 
                        significant civil liberties issues, unless the 
                        court issues a finding that such appointment is 
                        not appropriate; and''; and
                    (B) in subparagraph (B), by striking ``an 
                individual or organization'' each place the term 
                appears and inserting ``one or more individuals or 
                organizations''.
            (2) Definition of sensitive investigative matter.--
        Subsection (i) of section 103 (50 U.S.C. 1803) is amended by 
        adding at the end the following:
            ``(12) Definition.--In this subsection, the term `sensitive 
        investigative matter' means--
                    ``(A) an investigative matter involving the 
                activities of--
                            ``(i) a domestic public official or 
                        political candidate, or an individual serving 
                        on the staff of such an official or candidate;
                            ``(ii) a domestic religious or political 
                        organization, or a known or suspected United 
                        States person prominent in such an 
                        organization; or
                            ``(iii) the domestic news media; or
                    ``(B) any other investigative matter involving a 
                domestic entity or a known or suspected United States 
                person that, in the judgment of the applicable court 
                established under subsection (a) or (b), is as 
                sensitive as an investigative matter described in 
                subparagraph (A).''.
    (b) Authority to Seek Review.--Subsection (i) of section 103 (50 
U.S.C. 1803), as amended by subsection (a) of this section, is 
amended--
            (1) in paragraph (4)--
                    (A) in the paragraph heading, by inserting ``; 
                authority'' after ``Duties'';
                    (B) by redesignating subparagraphs (A), (B), and 
                (C) as clauses (i), (ii), and (iii), respectively, and 
                adjusting the margins accordingly;
                    (C) in the matter preceding clause (i), as so 
                designated, by striking ``the amicus curiae shall'' and 
                inserting the following: ``the amicus curiae--
                    ``(A) shall'';
                    (D) in subparagraph (A)(i), as so designated, by 
                inserting before the semicolon at the end the 
                following: ``, including legal arguments regarding any 
                privacy or civil liberties interest of any United 
                States person that would be significantly impacted by 
                the application or motion''; and
                    (E) by striking the period at the end and inserting 
                the following: ``; and
                    ``(B) may seek leave to raise any novel or 
                significant privacy or civil liberties issue relevant 
                to the application or motion or other issue directly 
                impacting the legality of the proposed electronic 
                surveillance with the court, regardless of whether the 
                court has requested assistance on that issue.'';
            (2) by redesignating paragraphs (7) through (12) as 
        paragraphs (8) through (13), respectively; and
            (3) by inserting after paragraph (6) the following:
            ``(7) Authority to seek review of decisions.--
                    ``(A) FISA court decisions.--Following issuance of 
                an order under this Act by the Foreign Intelligence 
                Surveillance Court, an amicus curiae appointed under 
                paragraph (2) may petition the Foreign Intelligence 
                Surveillance Court to certify for review to the Foreign 
                Intelligence Surveillance Court of Review a question of 
                law pursuant to subsection (j). If the court denies 
                such petition, the court shall provide for the record a 
                written statement of the reasons for such denial. Upon 
                certification of any question of law pursuant to this 
                subparagraph, the Court of Review shall appoint the 
                amicus curiae to assist the Court of Review in its 
                consideration of the certified question, unless the 
                Court of Review issues a finding that such appointment 
                is not appropriate.
                    ``(B) FISA court of review decisions.--An amicus 
                curiae appointed under paragraph (2) may petition the 
                Foreign Intelligence Surveillance Court of Review to 
                certify for review to the Supreme Court of the United 
                States any question of law pursuant to section 1254(2) 
                of title 28, United States Code.
                    ``(C) Declassification of referrals.--For purposes 
                of section 602, a petition filed under subparagraph (A) 
                or (B) of this paragraph and all of its content shall 
                be considered a decision, order, or opinion issued by 
                the Foreign Intelligence Surveillance Court or the 
                Foreign Intelligence Surveillance Court of Review 
                described in paragraph (2) of section 602(a).''.

(3) In section 302(c), redesignate paragraph (2) as paragraph (3).

(4) In section 302(c), strike paragraph (1) and insert the following:

            (1) Application and materials.--Subparagraph (A) of section 
        103(i)(6) (50 U.S.C. 1803(i)(6)) is amended to read as follows:
                    ``(A) In general.--
                            ``(i) Right of amicus.--If a court 
                        established under subsection (a) or (b) 
                        appoints an amicus curiae under paragraph (2), 
                        the amicus curiae--
                                    ``(I) shall have access to, to the 
                                extent such information is available to 
                                the Government--
                                            ``(aa) the application, 
                                        certification, petition, 
                                        motion, and other information 
                                        and supporting materials, 
                                        including any information 
                                        described in section 901, 
                                        submitted to the Foreign 
                                        Intelligence Surveillance Court 
                                        in connection with the matter 
                                        in which the amicus curiae has 
                                        been appointed, including 
                                        access to any relevant legal 
                                        precedent (including any such 
                                        precedent that is cited by the 
                                        Government, including in such 
                                        an application);
                                            ``(bb) an unredacted copy 
                                        of each relevant decision made 
                                        by the Foreign Intelligence 
                                        Surveillance Court or the 
                                        Foreign Intelligence 
                                        Surveillance Court of Review in 
                                        which the court decides a 
                                        question of law, without regard 
                                        to whether the decision is 
                                        classified; and
                                            ``(cc) any other 
                                        information or materials that 
                                        the court determines are 
                                        relevant to the duties of the 
                                        amicus curiae; and
                                    ``(II) may make a submission to the 
                                court requesting access to any other 
                                particular materials or information (or 
                                category of materials or information) 
                                that the amicus curiae believes to be 
                                relevant to the duties of the amicus 
                                curiae.
                            ``(ii) Supporting documentation regarding 
                        accuracy.--The Foreign Intelligence 
                        Surveillance Court, upon the motion of an 
                        amicus curiae appointed under paragraph (2) or 
                        upon its own motion, may require the Government 
                        to make available the supporting documentation 
                        described in section 902.''.
            (2) Clarification of access to certain information.--Such 
        section is further amended--
                    (A) in subparagraph (B), by striking ``may'' and 
                inserting ``shall''; and
                    (B) by striking subparagraph (C) and inserting the 
                following:
                    ``(C) Classified information.--An amicus curiae 
                appointed by the court shall have access to, to the 
                extent such information is available to the Government, 
                unredacted copies of each opinion, order, transcript, 
                pleading, or other document of the Foreign Intelligence 
                Surveillance Court and the Foreign Intelligence 
                Surveillance Court of Review, including, if the 
                individual is eligible for access to classified 
                information, any classified documents, information, and 
                other materials or proceedings.''.

(5) Redesignate section 207 as section 208.

(6) Insert after section 206 the following:

SEC. 207. DISCLOSURE OF RELEVANT INFORMATION; CERTIFICATION REGARDING 
              ACCURACY PROCEDURES.

    (a) Disclosure of Relevant Information.--
            (1) In general.--The Foreign Intelligence Surveillance Act 
        of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the 
        end the following:

             ``TITLE IX--DISCLOSURE OF RELEVANT INFORMATION

``SEC. 901. DISCLOSURE OF RELEVANT INFORMATION.

    ``The Attorney General or any other Federal officer making an 
application for a court order under this Act shall provide the court 
with--
            ``(1) all information in the possession of the Government 
        that is material to determining whether the application 
        satisfies the applicable requirements under this Act, including 
        any exculpatory information; and
            ``(2) all information in the possession of the Government 
        that might reasonably--
                    ``(A) call into question the accuracy of the 
                application or the reasonableness of any assessment in 
                the application conducted by the department or agency 
                on whose behalf the application is made; or
                    ``(B) otherwise raise doubts with respect to the 
                findings that are required to be made under the 
                applicable provision of this Act in order for the court 
                order to be issued.''.
            (2) Technical amendment.--The table of contents of the 
        Foreign Intelligence Surveillance Act of 1978 is amended by 
        adding at the end the following:

             ``TITLE IX--DISCLOSURE OF RELEVANT INFORMATION

``Sec. 901. Disclosure of relevant information.''.
    (b) Certification Regarding Accuracy Procedures.--
            (1) In general.--Title IX of the Foreign Intelligence 
        Surveillance Act of 1978, as added by subsection (a), is 
        amended by adding at the end the following:

``SEC. 902. CERTIFICATION REGARDING ACCURACY PROCEDURES.

    ``(a) Definition.--In this section, the term `accuracy procedures' 
means specific procedures, adopted by the Attorney General, to ensure 
that an application for a court order under this Act, including any 
application for renewal of an existing order, is accurate and complete, 
including procedures that ensure, at a minimum, that--
            ``(1) the application reflects all information that might 
        reasonably call into question the accuracy of the information 
        or the reasonableness of any assessment in the application, or 
        otherwise raises doubts about the requested findings;
            ``(2) the application reflects all material information 
        that might reasonably call into question the reliability and 
        reporting of any information from a confidential human source 
        that is used in the application;
            ``(3) a complete file documenting each factual assertion in 
        an application is maintained;
            ``(4) the applicant coordinates with the appropriate 
        elements of the intelligence community (as defined in section 3 
        of the National Security Act of 1947 (50 U.S.C. 3003)), 
        concerning any prior or existing relationship with the target 
        of any surveillance, search, or other means of investigation, 
        and discloses any such relationship in the application;
            ``(5) before any application targeting a United States 
        person is made, the applicant Federal officer shall document 
        that the officer has collected and reviewed for accuracy and 
        completeness supporting documentation for each factual 
        assertion in the application; and
            ``(6) the applicant Federal agency establish compliance and 
        auditing mechanisms on an annual basis to assess the efficacy 
        of the accuracy procedures that have been adopted and report 
        such findings to the Attorney General.
    ``(b) Statement and Certification of Accuracy Procedures.--Any 
Federal officer making an application for a court order under this Act 
shall include with the application--
            ``(1) a description of the accuracy procedures employed by 
        the officer or the officer's designee; and
            ``(2) a certification that the officer or the officer's 
        designee has collected and reviewed for accuracy and 
        completeness--
                    ``(A) supporting documentation for each factual 
                assertion contained in the application;
                    ``(B) all information that might reasonably call 
                into question the accuracy of the information or the 
                reasonableness of any assessment in the application, or 
                otherwise raises doubts about the requested findings; 
                and
                    ``(C) all material information that might 
                reasonably call into question the reliability and 
                reporting of any information from any confidential 
                human source that is used in the application.
    ``(c) Necessary Finding for Court Orders.--A judge may not enter an 
order under this Act unless the judge finds, in addition to any other 
findings required under this Act, that the accuracy procedures 
described in the application for the order, as required under 
subsection (b)(1), are actually accuracy procedures as defined in this 
section.''.
            (2) Technical amendment.--The table of contents of the 
        Foreign Intelligence Surveillance Act of 1978, as amended by 
        subsection (a), is amended by inserting after the item relating 
        to section 901 the following:

``Sec. 902. Certification regarding accuracy procedures.''.

(7) In section 208, as so redesignated, strike [section 501 of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861)] and 
insert: the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801 et seq.) (if applicable)

(8) At the end, add the following:

SEC. 409. ANNUAL REPORTING ON ACCURACY AND COMPLETENESS OF 
              APPLICATIONS.

    Section 603 (50 U.S.C. 1873) is amended--
            (1) by redesignating subsection (e) as subsection (f); and
            (2) by inserting after subsection (d) the following:
    ``(e) Annual Report by DOJ Inspector General on Accuracy and 
Completeness of Applications.--
            ``(1) Definition of appropriate committees of congress.--In 
        this subsection, the term `appropriate committees of Congress' 
        means--
                    ``(A) the Committee on the Judiciary and the Select 
                Committee on Intelligence of the Senate; and
                    ``(B) the Committee on the Judiciary and the 
                Permanent Select Committee on Intelligence of the House 
                of Representatives.
            ``(2) Report.--In April of each year, the Inspector General 
        of the Department of Justice shall submit to the appropriate 
        committees of Congress and make public, subject to a 
        declassification review, a report setting forth, with respect 
        to the preceding calendar year, the following:
                    ``(A) A summary of all accuracy or completeness 
                reviews of applications submitted to the Foreign 
                Intelligence Surveillance Court by the Federal Bureau 
                of Investigation.
                    ``(B) The total number of applications reviewed for 
                accuracy or completeness.
                    ``(C) The total number of material errors or 
                omissions identified during such reviews.
                    ``(D) The total number of nonmaterial errors or 
                omissions identified during such reviews.
                    ``(E) The total number of instances in which facts 
                contained in an application were not supported by 
                documentation that existed in the applicable file being 
                reviewed at the time of the accuracy review.''.

            Attest:

                                                             Secretary.
116th CONGRESS

  2d Session

                               H.R. 6172

_______________________________________________________________________

                               AMENDMENTS