[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3420 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 3420
To extend surveillance authorities and expand amicus curiae protections
under the Foreign Intelligence Surveillance Act of 1978.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 9, 2020
Mr. Leahy (for himself and Mr. Lee) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To extend surveillance authorities and expand amicus curiae protections
under the Foreign Intelligence Surveillance Act of 1978.
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 ``USA FREEDOM Extension and Amici
Curiae Reform Act of 2020''.
SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or a
repeal of, a section or other provision, the reference shall be
considered to be made to a section or other provision of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
SEC. 3. APPOINTMENT OF AMICI CURIAE AND ACCESS TO INFORMATION.
(a) Expansion of Appointment Authority.--
(1) In general.--Section 103(i)(2) (50 U.S.C. 1803(i)(2))
is amended by striking subparagraph (A) and inserting the
following:
``(A) shall appoint an individual who has been
designated under paragraph (1) and who possesses
expertise in privacy and civil liberties to serve as
amicus curiae to assist such court in the consideration
of any application 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 civil liberties
issues, unless the court issues a finding that
such appointment is not appropriate; and''.
(2) Definition of sensitive investigative matter.--Section
103(i) (50 U.S.C. 1803(i)) 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;
``(ii) a domestic religious or political
organization, or an individual prominent in
such an organization; or
``(iii) the domestic news media; or
``(B) any other investigative matter 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.--Section 103(i) (50 U.S.C. 1803(i)),
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
colorable privacy or civil liberties interest of any
aggrieved United States person''; and
(E) by striking the period at the end and inserting
the following: ``; and
``(B) may raise any issue with the court at any
time, 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.--
``(i) Petition.--Following issuance of an
order under this Act by the Foreign
Intelligence Surveillance Court, an amicus
curiae appointed under paragraph (2) may
petition the court to certify for review to the
Foreign Intelligence Surveillance Court of
Review a question of law pursuant to subsection
(j).
``(ii) Appointment.--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 file a
petition for a writ of certiorari from the Supreme
Court of the United States for review of any decision
by the Foreign Intelligence Surveillance Court of
Review.
``(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).''.
(c) Access to Information.--
(1) Application and materials.--Section 103(i)(6)(A) (50
U.S.C. 1803(i)(6)(A)) is amended by striking clauses (i) and
(ii) and inserting the following:
``(i) shall have access to--
``(I) the application,
certification, petition, motion, and
other information and supporting
materials, 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);
``(II) any other information or
materials that the court determines is
relevant to the duties of the amicus
curiae; and
``(III) 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
``(ii) may make a submission to the court
requesting access to any 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.''.
(2) Clarification of access to certain information.--
Section 103(i)(6) (50 U.S.C. 1803(i)(6)) is 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
designated or appointed by the court shall have access
to 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.''.
(3) Consultation among amici curiae.--Section 103(i)(6) (50
U.S.C. 1803(i)(6)), as amended by paragraphs (1) and (2) of
this subsection, is amended--
(A) by redesignating subparagraphs (B), (C), and
(D) as subparagraphs (C), (D), and (E), respectively;
and
(B) by inserting after subparagraph (A) the
following:
``(B) Consultation.--If the Foreign Intelligence
Surveillance Court or the Foreign Intelligence
Surveillance Court of Review determines that it is
relevant to the duties of an amicus curiae appointed
under paragraph (2), the amicus curiae may consult with
one or more of the other individuals designated by the
court to serve as amicus curiae pursuant to paragraph
(1) regarding any of the information relevant to any
assigned proceeding.''.
SEC. 4. SUNSETS.
(a) USA PATRIOT Improvement and Reauthorization Act of 2005.--
Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization
Act of 2005 (50 U.S.C. 1805 note) is amended by striking ``March 15,
2020'' and inserting ``June 19, 2020''.
(b) Intelligence Reform and Terrorism Prevention Act of 2004.--
Section 6001(b)(1) of the Intelligence Reform and Terrorism Prevention
Act of 2004 (50 U.S.C. 1801 note) is amended by striking ``March 15,
2020'' and inserting ``June 19, 2020''.
(c) Effective Date.--The amendments made by this section shall take
effect on the earlier of the date of the enactment of this Act or March
15, 2020.
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