Text: S.2158 — 115th Congress (2017-2018)All Information (Except Text)

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Introduced in Senate (11/16/2017)


115th CONGRESS
1st Session
S. 2158


To amend the Foreign Intelligence Surveillance Act of 1978 to clarify and improve the procedures and accountability for authorizing certain acquisitions of foreign intelligence, to extend title VII of such Act, to ensure that the barriers to sharing critical foreign intelligence among the intelligence community that existed before September 11, 2001, are not reimposed, and for other purposes.


IN THE SENATE OF THE UNITED STATES

November 16, 2017

Mr. Lee (for himself and Mr. Leahy) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To amend the Foreign Intelligence Surveillance Act of 1978 to clarify and improve the procedures and accountability for authorizing certain acquisitions of foreign intelligence, to extend title VII of such Act, to ensure that the barriers to sharing critical foreign intelligence among the intelligence community that existed before September 11, 2001, are not reimposed, 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; table of contents.

(a) Short title.—This Act may be cited as the “Uniting and Strengthening American Liberty Act of 2017” or the “USA Liberty Act of 2017”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 2. Amendments to the Foreign Intelligence Surveillance Act of 1978.

Sec. 101. Court orders and protection of incidentally collected United States person communications.

Sec. 102. Attorney General approval and additional protection of incidentally collected United States person communications.

Sec. 103. Limitation on collection and improvements to targeting procedures and minimization procedures.

Sec. 104. Publication of minimization procedures under section 702.

Sec. 105. Appointment of amicus curiae for annual certifications.

Sec. 106. Increased accountability on incidentally collected communications.

Sec. 107. Semiannual reports on certain queries by Federal Bureau of Investigation.

Sec. 108. Additional reporting requirements.

Sec. 109. Application of certain amendments.

Sec. 110. Sense of Congress on purpose of section 702 and respecting foreign nationals.

Sec. 201. Limitation on retention of certain data.

Sec. 202. Improvements to Privacy and Civil Liberties Oversight Board.

Sec. 203. Privacy and civil liberties officers.

Sec. 204. Whistleblower protections for contractors of the intelligence community.

Sec. 301. Extension of title VII of FISA; effective dates.

Sec. 302. Increased penalty for unauthorized removal and retention of classified documents or material.

Sec. 303. Rule of construction regarding criminal penalties for unauthorized use of information acquired under section 702 and unauthorized disclosure of United States person information.

Sec. 304. Comptroller General study on unauthorized disclosures and the classification system.

Sec. 305. Sense of Congress on information sharing among intelligence community to protect national security.

Sec. 306. Sense of Congress on combating terrorism.

Sec. 307. Technical amendments and amendments to improve procedures of the Foreign Intelligence Surveillance Court of Review.

Sec. 308. Severability.

Sec. 309. Rule of construction.

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. 101. Court orders and protection of incidentally collected United States person communications.

(a) In general.—Section 702 (50 U.S.C. 1881a) is amended—

(1) by redesignating subsections (j), (k), and (l) as subsections (k), (l), and (m), respectively; and

(2) by inserting after subsection (i) the following:

“(j) Requirements for access and dissemination of collections of communications.—

“(1) COURT ORDERS.—

“(A) IN GENERAL.—Except as provided under paragraph (3), in response to a query relating to a United States person or a person reasonably believed to be located in the United States, the contents of queried communications acquired under subsection (a) may be accessed or disseminated only if—

“(i) the Attorney General submits to the Foreign Intelligence Surveillance Court an application that demonstrates that—

“(I) there is probable cause to believe that—

“(aa) such contents provide evidence of a crime specified in section 2516 of title 18, United States Code; or

“(bb) the individual is an agent of a foreign power; and

“(II) any use of such communications pursuant to section 706 will be carried out in accordance with such section; and

“(ii) a judge of the Foreign Intelligence Surveillance Court reviews and approves such application under subparagraph (B).

“(B) ORDER.—

“(i) APPROVAL.—Upon an application made under subparagraph (A), the Foreign Intelligence Surveillance Court shall enter an order as requested or as modified by the Court approving the access or dissemination of contents of communications covered by the application if the Court determines that, based on an independent review—

“(I) the application contains all information required under subparagraph (A);

“(II) on the basis of the facts in the application, there is probable cause to believe that—

“(aa) such contents provide evidence of a crime specified in section 2516 of title 18, United States Code; or

“(bb) the person identified by the queried term is an agent of a foreign power; and

“(III) the minimization procedures adopted pursuant to subsection (e) will ensure compliance with subparagraph (A)(i)(II).

“(ii) REVIEW.—A denial of an application submitted under subparagraph (A) may be reviewed as provided in section 103.

“(2) EXPEDITIOUS CONSIDERATION.—Any application submitted under paragraph (1)(A) shall be considered by the Foreign Intelligence Surveillance Court expeditiously and without delay.

“(3) EXCEPTIONS.—The requirement for an order pursuant to paragraph (1) shall not apply to accessing or disseminating communications acquired under subsection (a) if—

“(A) the Attorney General determines that the person identified by the queried term is the subject of an order based upon a finding of probable cause, or emergency authorization, that authorizes electronic surveillance or physical search under this Act or title 18, United States Code (other than such emergency authorizations under title IV of this Act or section 3125 of title 18, United States Code);

“(B) the Attorney General—

“(i) reasonably determines that an emergency situation requires the accessing or dissemination of the communications before an order pursuant to paragraph (1) authorizing such access or dissemination can with due diligence be obtained;

“(ii) reasonably believes that the factual basis for the issuance of such an order exists; and

“(iii) with respect to the access or dissemination of the contents of such communications—

“(I) informs the Court at the time the Attorney General requires the emergency access or dissemination that the decision has been made to employ the authority under this paragraph; and

“(II) may not use the contents of such communications pursuant to section 706 if the Court finds that the determination by the Attorney General with respect to the emergency situation was not appropriate; or

“(C) there is consent provided in accordance with paragraph (12).”.

(b) Technical and conforming amendment.—Section 404(b)(4) of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (50 U.S.C. 1801 note) is amended by striking “702(l)” each place it appears and inserting “702(m)”.

SEC. 102. Attorney General approval and additional protection of incidentally collected United States person communications.

Subsection (j) of section 702 (50 U.S.C. 1881a), as added by section 101, is amended by inserting after paragraph (3) the following:

“(4) RELEVANCE AND APPROVAL TO ACCESS NONCONTENTS INFORMATION.—Except as provided under paragraph (5), in response to a query relating to a United States person or a person reasonably believed to be located in the United States, the information of communications acquired under subsection (a) relating to dialing, routing, addressing, or signaling information that is not content and could otherwise be lawfully obtained under title IV of this Act may be accessed or disseminated only—

“(A) with the approval of the Attorney General;

“(B) if such information is relevant to an authorized investigation or assessment and is not sought solely on the basis of activities protected by the First Amendment to the Constitution of the United States;

“(C) if an order based on probable cause would not be required by law to obtain such information if requested as part of an investigation of a Federal crime; and

“(D) if any use of such communications pursuant to section 706 will be carried out in accordance with such section.

“(5) EXCEPTIONS.—The requirement for approval of the Attorney General under paragraph (4)(A) shall not apply to accessing or disseminating information of communications acquired under subsection (a) relating to dialing, routing, addressing, or signaling information that is not content and could otherwise be lawfully obtained under title IV of this Act if—

“(A) the Attorney General determines that the person identified by the queried term is the subject of an order based upon a finding of probable cause, or emergency authorization, that authorizes electronic surveillance or physical search under this Act or title 18, United States Code (other than such emergency authorizations under title IV of this Act or section 3125 of title 18, United States Code);

“(B) a supervisory determination is obtained that—

“(i) reasonably determines that an emergency situation requires the accessing or dissemination of the information of communications before the approval of the Attorney General under paragraph (4)(A) can with due diligence be obtained;

“(ii) reasonably believes that the factual basis for the approval of the Attorney General under paragraph (4)(A) exists; and

“(iii) with respect to the access or dissemination of such information of communications—

“(I) informs the Attorney General at the time the supervisor requires the emergency access or dissemination that the decision has been made to employ the authority under this subparagraph; and

“(II) may not use such information of communications pursuant to section 706 if the Attorney General finds that the determination by the supervisor with respect to the emergency situation was not appropriate; or

“(C) there is consent provided in accordance with paragraph (12).

“(6) DUE DILIGENCE.—A determination of whether the person identified by the queried term is a United States person or a person reasonably believed to be located in the United States under paragraph (1) or (4) shall be made based on the totality of the circumstances, including by, to the extent practicable, ensuring that any conflicting information regarding whether the person is a United States person or is reasonably believed to be located outside the United States is resolved before making such determination. If there is insufficient information available to make a determination, the person identified by the queried term shall be considered a United States person or person reasonably believed to be located in the United States for purposes of paragraphs (1) and (4).

“(7) LIMITATION ON ELECTRONIC SURVEILLANCE OF UNITED STATES PERSONS.—If the Attorney General determines that it is necessary to conduct electronic surveillance on a known United States person whose communications have been acquired under subsection (a), the Attorney General may only conduct such electronic surveillance using authority provided under other provisions of law.

“(8) SIMULTANEOUS QUERY OF FBI DATABASES.—Except as otherwise provided by law or applicable minimization procedures, the Director of the Federal Bureau of Investigation shall ensure that all available investigative or intelligence databases of the Federal Bureau of Investigation are simultaneously queried when the Federal Bureau of Investigation properly uses an information system of the Federal Bureau of Investigation to determine whether information exists in such a database.

“(9) DELEGATION.—The Attorney General shall delegate the authority under this subsection to the fewest number of officials that the Attorney General determines practicable.

“(10) RETENTION OF AUDITABLE RECORDS.—

“(A) RECORDS.—The Attorney General shall retain records of queries of a collection of communications acquired under subsection (a). The heads of elements of the intelligence community that are not components of the Department of Justice shall retain records of queries of a collection of communications acquired under subsection (a) that use a term identifying a United States person or a person located in the United States.

“(B) REQUIREMENTS.—Records retained under subparagraph (A) shall—

“(i) include queries for not less than 5 years after the date on which the query is made; and

“(ii) be maintained in a manner that is auditable and available for congressional oversight.

“(11) COMPLIANCE AND MAINTENANCE.—The requirements of this subsection do not apply with respect to queries made for the purpose of—

“(A) submitting to Congress information required by this Act or otherwise ensuring compliance with the requirements of this section; or

“(B) performing maintenance or testing of information systems.

“(12) CONSENT.—The requirements of this subsection do not apply with respect to—

“(A) queries made using a term identifying a person who is a party to the communications acquired under subsection (a), or a person who otherwise has lawful authority to provide consent, and who consents to such queries; or

“(B) the accessing or the dissemination of the contents or information of communications acquired under subsection (a) of a person who is a party to the communications, or a person who otherwise has lawful authority to provide consent, and who consents to such access or dissemination.

“(13) QUERY PURPOSES.—The contents of communications acquired under subsection (a) and the information relating to the dialing, routing, addressing, or signaling information of such communications may only be queried if the query is reasonably designed to return foreign intelligence information or evidence of a crime.”.

SEC. 103. Limitation on collection and improvements to targeting procedures and minimization procedures.

(a) Targeting procedures; limitation on collection.—Section 702(d) (50 U.S.C. 1881a(d)) is amended—

(1) in paragraph (1), by striking “The Attorney General” and inserting “In accordance with paragraphs (3) and (4), the Attorney General”; and

(2) by adding at the end the following new paragraphs:

“(3) DUE DILIGENCE.—The procedures adopted in accordance with paragraph (1) shall require due diligence in determining whether a person targeted is a non-United States person reasonably believed to be located outside the United States by—

“(A) making the determination based on the totality of the circumstances, including by, to the extent practicable, ensuring that any conflicting information regarding whether the person is reasonably believed to be located outside the United States or is a United States person is resolved before making such determination;

“(B) documenting the processes used for determinations described in subparagraph (A); and

“(C) documenting the rationale for why targeting such person will result in the acquisition of foreign intelligence information authorized by subsection (a).

“(4) LIMITATION.—

“(A) IN GENERAL.—The procedures adopted in accordance with paragraph (1) shall require that the targeting of a person is limited to communications to or from the targeted person.

“(B) ANNUAL REPORT.—On an annual basis, the Attorney General shall submit to the congressional intelligence committees and the Committees on the Judiciary of the House of Representatives and the Senate a report on—

“(i) any difficulty relating to the limitation under subparagraph (A); and

“(ii) the technical feasibility of ensuring that the handling of communications acquired under subsection (a) with respect to incidentally collected United States person information complies with the minimization procedures adopted under subsection (e).”.

(b) Minimization procedures.—Section 702(e) (50 U.S.C. 1881a(e)) is amended—

(1) in paragraph (1), by inserting “, and the requirements of this subsection” before the period at the end; and

(2) by adding at the end the following new paragraph:

“(3) REQUESTS TO UNMASK INFORMATION.—The procedures adopted under paragraph (1) shall include specific procedures adopted by the Attorney General for elements of the intelligence community to submit requests to unmask information in disseminated intelligence reports. Such specific procedures shall—

“(A) require the documentation of the requesting individual that such request is for legitimate reasons authorized pursuant to paragraph (1); and

“(B) require the retention of the records of each request, including—

“(i) a copy of the request;

“(ii) the name and position of the individual who is making the request; and

“(iii) if the request is approved, the name and position of the individual who approved the request and the date of the approval.”.

(c) Unmask defined.—Section 701(b) (50 U.S.C. 1881(b)) is amended by adding at the end the following new paragraph:

“(6) UNMASK.—The term ‘unmask’ means, with respect to a disseminated intelligence report containing a reference to a United States person that does not identify that person (including by name or title), to disseminate the identity of the United States person, including the name or title of the person.”.

(d) Consistent requirements To retain records on requests To unmask information.—The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended as follows:

(1) In section 101(h) (50 U.S.C. 1801(h))—

(A) in paragraph (3), by striking “; and” and inserting a semicolon;

(B) in paragraph (4), by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following new paragraph:

“(5) specific procedures as described in section 702(e)(3).”.

(2) In section 301(4) (50 U.S.C. 1821(4))—

(A) in subparagraph (C), by striking “; and” and inserting a semicolon;

(B) in subparagraph (D), by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following new subparagraph:

“(E) specific procedures as described in section 702(e)(3).”.

(3) In section 402(h) (50 U.S.C. 1842(h))—

(A) by redesignating paragraph (2) as paragraph (3); and

(B) by inserting after paragraph (1) the following new paragraph (2):

“(2) REQUESTS FOR NONPUBLICLY AVAILABLE INFORMATION.—The policies and procedures adopted under paragraph (1) shall include specific procedures as described in section 702(e)(3).”.

(4) In section 501(g)(2) (50 U.S.C. 1861(g)(2))—

(A) in subparagraph (B), by striking “; and” and inserting a semicolon;

(B) in subparagraph (C), by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following new subparagraph:

“(D) specific procedures as described in section 702(e)(3).”.

(e) Report on unmasking.—Not later than 90 days after the date of the enactment of this Act, the Director of National Intelligence shall submit to the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Committees on the Judiciary of the House of Representatives and the Senate a report on the progress made by the Director with respect to—

(1) ensuring that incidentally collected communications of United States persons (as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801)) are properly masked if masking is necessary; and

(2) implementing procedures for requests to unmask information under section 702(e)(3) of such Act (50 U.S.C. 1881a(e)(3)), as added by subsection (c).

SEC. 104. Publication of minimization procedures under section 702.

Section 702(e) (50 U.S.C. 1881a(e)), as amended by section 103, is further amended by adding at the end the following:

“(4) PUBLICATION.—The Director of National Intelligence, in consultation with the Attorney General, shall—

“(A) conduct a declassification review of any minimization procedures adopted or amended in accordance with paragraph (1); and

“(B) consistent with such review, and not later than 180 days after conducting such review, make such minimization procedures publicly available to the greatest extent practicable, which may be in redacted form.”.

SEC. 105. Appointment of amicus curiae for annual certifications.

Section 103(i) (50 U.S.C. 1803(i)(2)) is amended—

(1) in paragraph (2)—

(A) in subparagraph (A), by striking “; and” and inserting a semicolon;

(B) by redesignating subparagraph (B) as subparagraph (C); and

(C) by inserting after subparagraph (A) the following new subparagraph (B):

“(B) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the review of a certification under section 702(i), unless the court issues a finding that such appointment is not necessary; and”; and

(2) in paragraphs (4) and (5), by striking “paragraph (2)(A)” both places it appears and inserting “subparagraph (A) or (B) of paragraph (2)”.

SEC. 106. Increased accountability on incidentally collected communications.

Section 707 (50 U.S.C. 1881f) is amended by adding at the end the following new subsection:

“(c) Incidentally collected communications and other information.—Together with the semiannual report submitted under subsection (a), the Director of National Intelligence shall submit to the congressional committees specified in such subsection a report on incidentally collected communications and other information regarding United States persons under section 702. Each such report shall include, with respect to the 6-month period covered by the report, the following:

“(1) Except as provided by paragraph (2), the number, or a good faith estimate, of communications of United States persons acquired under subsection (a) of such section, including a description of any efforts of the intelligence community to ascertain such number or good faith estimate.

“(2) If the Director determines that the number, or a good faith estimate, under paragraph (1) is not achievable, a detailed explanation for why such number or good faith estimate is not achievable.

“(3) The number of—

“(A) United States persons whose information is unmasked pursuant to the procedures adopted under subsection (e)(3) of such section;

“(B) requests made by an element of the intelligence community, listed by each such element, to unmask information pursuant to such subsection; and

“(C) requests that resulted in the dissemination of names, titles, or other identifiers potentially associated with individuals pursuant to such subsection, including the element of the intelligence community and position of the individual making the request.

“(4) The number of disseminations of communications acquired under subsection (a) of section 702 to the Federal Bureau of Investigation for cases unrelated to foreign intelligence.

“(5) The number of instances in which evidence of a crime unrelated to foreign intelligence that was identified in communications acquired under subsection (a) of section 702 was disseminated from the national security branch of the Bureau to the criminal investigative division of the Bureau (or from such successor branch to such successor division).

“(6) The number of individuals to whom the Attorney General has delegated authority pursuant to subsection (j)(2)(G) of section 702.”.

SEC. 107. Semiannual reports on certain queries by Federal Bureau of Investigation.

Section 707 (50 U.S.C. 1881f), as amended by section 106, is further amended by adding at the end the following new subsection:

“(d) Semiannual FBI reports.—Together with the semiannual report submitted under subsection (a), the Director of the Federal Bureau of Investigation shall submit to the congressional committees specified in such subsection, and make publicly available, a report containing, with respect to the period covered by the report—

“(1) the number of applications made by the Federal Bureau of Investigation described in subsection (j)(1)(A) of section 702;

“(2) the number of such applications that were approved and resulted in the contents of communications being accessed or disseminated pursuant to such subsection; and

“(3) the number of Attorney General approvals made pursuant to subsection (j)(4)(A) of such section.”.

SEC. 108. Additional reporting requirements.

(a) Electronic surveillance.—Section 107 (50 U.S.C. 1807) is amended to read as follows:

“SEC. 107. Report of electronic surveillance.

“(a) Annual report.—In April of each year, the Attorney General shall transmit to the Administrative Office of the United States Courts and to Congress a report setting forth with respect to the preceding calendar year—

“(1) the total number of applications made for orders and extensions of orders approving electronic surveillance under this title;

“(2) the total number of such orders and extensions either granted, modified, or denied; and

“(3) the total number of persons who were subject to electronic surveillance conducted under an order or emergency authorization under this title, rounded to the nearest 500, including the number of such individuals who are United States persons, reported to the nearest band of 500, starting with 0–499.

“(b) Form.—Each report under subsection (a) shall be submitted in unclassified form. Not later than 7 days after the date on which the Attorney General submits each such report, the Attorney General shall make the report publicly available.”.

(b) Pen registers and trap and trace devices.—Section 406 (50 U.S.C. 1846) is amended—

(1) in subsection (b)—

(A) in paragraph (4), by striking “; and” and inserting a semicolon;

(B) in paragraph (5), by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following new paragraph:

“(6) a good faith estimate of the total number of subjects who were targeted by the installation and use of a pen register or trap and trace device under an order or emergency authorization issued under this title, rounded to the nearest 500, including—

“(A) the number of such subjects who are United States persons, reported to the nearest band of 500, starting with 0–499; and

“(B) of the number of United States persons described in subparagraph (A), the number of persons whose information acquired pursuant to such order was reviewed or accessed by a Federal officer, employee, or agent, reported to the nearest band of 500, starting with 0–499.”; and

(2) by adding at the end the following new subsection:

“(c) Each report under subsection (b) shall be submitted in unclassified form. Not later than 7 days after the date on which the Attorney General submits such a report, the Attorney General shall make such report publicly available.”.

SEC. 109. Application of certain amendments.

The amendments made by sections 101, 102, and 103 of this Act shall apply with respect to applications, certifications, and procedures submitted to the Foreign Intelligence Surveillance Court on or after the date that is 120 days after the date of the enactment of this Act.

SEC. 110. Sense of Congress on purpose of section 702 and respecting foreign nationals.

It is the sense of Congress that—

(1) the acquisition of communications by the National Security Agency under section 702 of the Foreign Intelligence Surveillance Act (50 U.S.C. 1881a) should be conducted within the bounds of treaties and agreements to which the United States is a party, and there should be no targeting of non-United States persons for any unfounded discriminatory purpose or for the purpose of affording a commercial competitive advantage to companies and business sectors of the United States; and

(2) the authority to collect intelligence under such section 702 is meant to shield the United States, and by extension, the allies of the United States, from security threats.

SEC. 201. Limitation on retention of certain data.

Subsection (m) of section 702 (50 U.S.C. 1881a), as redesignated by section 101, is amended—

(1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4); and

(2) by inserting after paragraph (1) the following new paragraph (2):

“(2) AFFIDAVIT ON DELETION INCLUDED IN SEMIANNUAL ASSESSMENT TO FISC AND CONGRESS.—Each semiannual assessment under paragraph (1) shall include, with respect to the 6-month period covered by the assessment, an affidavit by the Director of the National Security Agency, without delegation, that communications acquired under subsection (a) determined not to contain foreign intelligence information, if any, were deleted.”.

SEC. 202. Improvements to Privacy and Civil Liberties Oversight Board.

(a) Appointment of staff.—Subsection (j) of section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(j)) is amended—

(1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

(2) by inserting after paragraph (1) the following new paragraph:

“(2) APPOINTMENT IN ABSENCE OF CHAIRMAN.—If the position of chairman of the Board is vacant, during the period of the vacancy, the Board, at the direction of the unanimous vote of the serving members of the Board, may exercise the authority of the chairman under paragraph (1).”.

(b) Meetings.—Subsection (f) of such section (42 U.S.C. 2000ee(f)) is amended—

(1) by striking “The Board shall” and inserting “The Board”;

(2) in paragraph (1) by striking “make its” and inserting “shall make its”; and

(3) in paragraph (2)—

(A) by striking “hold public” and inserting “shall hold public”; and

(B) by inserting before the period at the end the following: “, but may, notwithstanding section 552b of title 5, United States Code, meet or otherwise communicate in any number to confer or deliberate in a manner that is closed to the public”.

(c) Report on section 702 and terrorism.—Not later than 1 year after the date on which the Privacy and Civil Liberties Oversight Board first achieves a quorum following the date of the enactment of this Act, the Board shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report assessing—

(1) how communications acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) are used by the United States to prevent or defend against terrorism;

(2) whether technological challenges and changes in technology affect the prevention of and defense against terrorism, and how effectively the foreign intelligence elements of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4))) have responded to those challenges; and

(3) how privacy and civil liberties are affected by the actions identified under paragraph (1) and the changes in technology identified under paragraph (2), and whether race, religion, political affiliation, or activities protected by the First Amendment to the Constitution of the United States are determinative in the targeting or querying decisions made pursuant to such section 702.

SEC. 203. Privacy and civil liberties officers.

(a) Codification of certain officers.—Section 1062(a) of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee–1(a)) is amended in the matter preceding paragraph (1) by inserting “, the Director of the National Security Agency, the Director of the Federal Bureau of Investigation” after “the Director of the Central Intelligence Agency”.

(b) Annual reports on incidental communications of United States persons.—Paragraph (4)(A) of subsection (m) of section 702 (50 U.S.C. 1881a), as redesignated by sections 101 and 201, is amended—

(1) in clause (iii), by striking “; and” and inserting a semicolon;

(2) in clause (iv), by striking the period at the end and inserting “; and”; and

(3) by adding at the end the following new clause:

“(v) a review by the privacy and civil liberties officer of the element of incidentally collected communications of United States persons to assess compliance with the minimization procedures adopted under subsection (e) and the effect of this section on the privacy of United States persons.”.

SEC. 204. Whistleblower protections for contractors of the intelligence community.

(a) Prohibited personnel practices in the intelligence community.—Section 1104 of the National Security Act of 1947 (50 U.S.C. 3234) is amended—

(1) in subsection (a)—

(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively;

(B) by inserting after paragraph (1) the following:

“(2) CONTRACTOR EMPLOYEE.—The term ‘contractor employee’ means an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor of a covered intelligence community element.”; and

(C) in paragraph (4), as so redesignated, in the matter preceding subparagraph (A) by inserting “or a contractor employee of a covered intelligence community element” after “character)”;

(2) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively;

(3) by inserting after subsection (b) the following new subsection (c):

“(c) Contractor employees.— (1) A contractor employee or employee of a covered intelligence community element who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to any contractor employee as a reprisal for a lawful disclosure of information by the contractor employee to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose), the Inspector General of the Intelligence Community, the head of the contracting agency (or an employee designated by the head of that agency for such purpose), the appropriate inspector general of the contracting agency, a congressional intelligence committee, or a member of a congressional intelligence committee, which the contractor employee reasonably believes evidences—

“(A) a violation of any Federal law, rule, or regulation (including with respect to evidence of another employee or contractor employee accessing or sharing classified information without authorization); or

“(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

“(2) A personnel action under paragraph (1) is prohibited even if the action is undertaken at the request of an officer or employee of the applicable covered intelligence community element, unless the request takes the form of a nondiscretionary directive and is within the authority of the officer or employee making the request.

“(3) A contractor employee may raise a violation of paragraph (1) in any proceeding to implement or challenge a personnel action described in such paragraph.”;

(4) in subsection (b), by striking the heading and inserting “Agency employees.—”; and

(5) in subsection (e)(1), as redesignated by paragraph (2), by inserting “contractor employee,” after “any employee,”.

(b) Federal Bureau of Investigation.—

(1) IN GENERAL.—Any contractor employee or employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to a contractor employee as a reprisal for a disclosure of information—

(A) made—

(i) to a supervisor in the direct chain of command of the contractor employee, up to and including the Director of the Federal Bureau of Investigation;

(ii) to the Inspector General of the Department of Justice;

(iii) to the Office of Professional Responsibility of the Department of Justice;

(iv) to the Office of Professional Responsibility of the Federal Bureau of Investigation;

(v) to the Inspection Division of the Federal Bureau of Investigation;

(vi) as described in section 7211 of title 5, United States Code;

(vii) to the Office of Special Counsel; or

(viii) to an employee designated by any officer, employee, office, or division described in clauses (i) through (vii) for the purpose of receiving such disclosures; and

(B) which the contractor employee reasonably believes evidences—

(i) any violation of any law, rule, or regulation (including with respect to evidence of another employee or contractor employee accessing or sharing classified information without authorization); or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(2) ACTIONS BY REQUEST.—A personnel action under paragraph (1) is prohibited even if the action is undertaken at the request of an officer or employee of the Federal Bureau of Investigation, unless the request takes the form of a nondiscretionary directive and is within the authority of the officer or employee making the request.

(3) VIOLATION.—A contractor employee may raise a violation of paragraph (1) in any proceeding to implement or challenge a personnel action described in such paragraph.

(4) REGULATIONS.—The Attorney General shall prescribe regulations to ensure that a personnel action described in paragraph (1) shall not be taken against a contractor employee of the Bureau as a reprisal for any disclosure of information described in such paragraph.

(5) ENFORCEMENT.—The President shall provide for the enforcement of this subsection in a manner consistent with applicable provisions of sections 1214 and 1221 of title 5, United States Code.

(6) DEFINITIONS.—In this subsection:

(A) The term “contractor employee” means an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of the Federal Bureau of Investigation.

(B) The term “personnel action” means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of title 5, United States Code, with respect to a contractor employee.

(c) Retaliatory revocation of security clearances and access determinations.—Section 3001(j) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(j)) is amended by adding at the end the following new paragraph:

“(8) INCLUSION OF CONTRACTOR EMPLOYEES.—In this subsection, the term ‘employee’ includes an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of an agency. With respect to such employees, the term ‘employing agency’ shall be deemed to be the contracting agency.”.

SEC. 301. Extension of title VII of FISA; effective dates.

(a) Extension.—Section 403(b) of the FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat. 2474) is amended—

(1) in paragraph (1)—

(A) by striking “December 31, 2017” and inserting “September 30, 2023”; and

(B) by inserting “and by the USA Liberty Act of 2017” after “section 101(a)”; and

(2) in paragraph (2) in the matter preceding subparagraph (A), by striking “December 31, 2017” and inserting “September 30, 2023”.

(b) Conforming amendments.—Section 404(b) of the FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat. 2476) is amended—

(1) in paragraph (1)—

(A) in the heading, by striking “December 31, 2017” and inserting “September 30, 2023”; and

(B) by inserting “and by the USA Liberty Act of 2017” after “section 101(a)”;

(2) in paragraph (2), by inserting “and by the USA Liberty Act of 2017” after “section 101(a)”; and

(3) in paragraph (4)—

(A) by inserting “and amended by the USA Liberty Act of 2017” after “as added by section 101(a)” both places it appears; and

(B) by inserting “and by the USA Liberty Act of 2017” after “as amended by section 101(a)” both places it appears.

(c) Effective date of amendments to FAA.—The amendments made to the FISA Amendments Act of 2008 (Public Law 110–261) by this section shall take effect on the earlier of the date of the enactment of this Act or December 31, 2017.

SEC. 302. Increased penalty for unauthorized removal and retention of classified documents or material.

Section 1924(a) of title 18, United States Code, is amended by striking “one year” and inserting “5 years”.

SEC. 303. Rule of construction regarding criminal penalties for unauthorized use of information acquired under section 702 and unauthorized disclosure of United States person information.

Nothing in this Act or the amendments made by this Act may be construed to limit the application or effect of criminal penalties under section 552a(i) of title 5, United States Code, sections 1001, 1030, and 1924 of title 18, United States Code, or any other relevant provision of law, with respect to offenses relating to the unauthorized access or use of information acquired under section 702 of the Foreign Intelligence Surveillance Act (50 U.S.C. 1881a) or the unauthorized disclosure of United States person information acquired under such section.

SEC. 304. Comptroller General study on unauthorized disclosures and the classification system.

(a) Study.—The Comptroller General of the United States shall conduct a study of the unauthorized disclosure of classified information and the classification system of the United States.

(b) Matters included.—The study under subsection (a) shall address the following:

(1) Insider threat risks to the unauthorized disclosure of classified information.

(2) The effect of modern technology on the unauthorized disclosure of classified information, including with respect to—

(A) using cloud storage for classified information; and

(B) any technological means to prevent or detect such unauthorized disclosure.

(3) The effect of overclassification on the unauthorized disclosure of classified information.

(4) Any ways to improve the classification system of the United States, including with respect to changing the levels of classification used in such system and to reduce overclassification.

(5) How to improve the authorized sharing of classified information, including with respect to sensitive compartmented information.

(6) The value of polygraph tests in determining who is authorized to access classified information.

(7) Whether each element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)))—

(A) applies uniform standards in determining who is authorized to access classified information; and

(B) provides proper training with respect to the handling of classified information and the avoidance of overclassification.

(c) Cooperation.—The heads of the intelligence community shall provide to the Comptroller General information the Comptroller General determines necessary to carry out the study under subsection (a).

(d) Report.—Not later than 180 days after the date of the enactment of this Act, the Comptroller General shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the study under subsection (a).

(e) Form.—The report under subsection (d) shall be submitted in unclassified form, but may include a classified annex.

SEC. 305. Sense of Congress on information sharing among intelligence community to protect national security.

It is the sense of Congress that, in carrying out section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a), as amended by this Act, the United States Government should ensure that the barriers, whether real or perceived, to sharing critical foreign intelligence among the intelligence community that existed before September 11, 2001, are not reimposed by sharing information vital to national security among the intelligence community in a manner that is consistent with such section, applicable provisions of law, and the Constitution of the United States.

SEC. 306. Sense of Congress on combating terrorism.

It is the sense of Congress that, consistent with the protection of sources and methods, when lawful and appropriate, the President should share information learned by acquiring communications under section 702 of the Foreign Intelligence Surveillance Act (50 U.S.C. 1881a) with allies of the United States to prevent and defend against terrorism.

SEC. 307. Technical amendments and amendments to improve procedures of the Foreign Intelligence Surveillance Court of Review.

(a) Technical amendments.—The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended as follows:

(1) In section 103(b) (50 U.S.C. 1803(b)), by striking “designate as the” and inserting “designated as the”.

(2) In section 302(a)(1)(A)(iii) (50 U.S.C. 1822(a)(1)(A)(iii)), by striking “paragraphs (1) through (4)” and inserting “subparagraphs (A) through (D)”.

(3) In section 406(b) (50 U.S.C. 1846(b)), by striking “and to the Committees on the Judiciary of the House of Representatives and the Senate”.

(4) In section 604(a) (50 U.S.C. 1874(a))—

(A) in paragraph (1)(D), by striking “contents” and inserting “contents,”; and

(B) in paragraph (3), by striking “comply in the into” and inserting “comply into”.

(5) In section 701 (50 U.S.C. 1881)—

(A) in subsection (a), by striking “The terms” and inserting “In this title, the terms”; and

(B) in subsection (b)—

(i) by inserting “In this title:” after the subsection heading; and

(ii) in paragraph (5), by striking “(50 U.S.C. 401a(4))” and inserting “(50 U.S.C. 3003(4))”.

(6) In section 702(g)(2)(A)(i) (50 U.S.C. 1881a(g)(2)(A)(i)), by inserting “targeting” before “procedures in place”.

(7) In section 801(7) (50 U.S.C. 1885(7)), by striking “(50 U.S.C. 401a(4))” and inserting “(50 U.S.C. 3003(4))”.

(b) Court-Related amendments.—The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is further amended as follows:

(1) In section 103 (50 U.S.C. 1803)—

(A) in subsection (b), by striking “immediately”; and

(B) in subsection (h), by striking “the court established under subsection (a)” and inserting “a court established under this section”.

(2) In section 105(d) (50 U.S.C. 1805(d)), by adding at the end the following new paragraph:

“(4) A denial of the application made under section 104 may be reviewed as provided in section 103.”.

(3) In section 302(d) (50 U.S.C. 1822(d)), by striking “immediately”.

(4) In section 402(d) (50 U.S.C. 1842(d)), by adding at the end the following new paragraph:

“(3) A denial of the application made under this subsection may be reviewed as provided in section 103.”.

(5) In section 403(c) (50 U.S.C. 1843(c)), by adding at the end the following new paragraph:

“(3) A denial of the application made under subsection (a)(2) may be reviewed as provided in section 103.”.

(6) In section 501(c) (50 U.S.C. 1861(c)), by adding at the end the following new paragraph:

“(4) A denial of the application made under this subsection may be reviewed as provided in section 103.”.

SEC. 308. Severability.

If any provision of this Act, any amendment made by this Act, or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act, of any such amendments, and of the application of such provisions to other persons and circumstances shall not be affected thereby.

SEC. 309. Rule of construction.

Nothing in this Act or the amendments made by this Act shall be construed to authorize the acquisition, querying, retention, dissemination, or use of information not previously authorized under the FISA Amendments Act of 2008 or the amendments made by that Act.


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