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