H.R. 3361 — what changed

changed “(C) in the case of an application for the production on a daily basis of call detail records created on before, on, or after the date of the application, application relating to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to protect against international terrorism, a statement of facts showing that—

changed “(i) there are reasonable grounds to believe that the call detail records sought to be produced based on the specific selection term required under subparagraph (A) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to protect against international terrorism; such investigation; and

“(ii) there are facts giving rise to a reasonable, articulable suspicion that such specific selection term is associated with a foreign power or an agent of a foreign power; and”

“(F) in the case of an application described in subsection (b)(2)(C), shall—

changed “(i) authorize the production on a daily basis of call detail records for a period not to exceed 180 days;

“(ii) provide that an order for such production may be extended upon application under subsection (b) and the judicial finding under paragraph (1);

changed “(iii) provide that the Government may require the prompt production of call detail records—

“(I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

changed “(II) using the results of the production under subclause (I) call detail records with a direct connection to such specific selection term as the basis for production;production of a second set of call detail records;

changed “(iv) direct each person the Government directs to produce call detail provide that, when produced, such records under the order to furnish the Government forthwith all information, facilities, or technical assistance necessary to accomplish the production be in such a manner as will protect the secrecy of the production and produce a minimum of interference with the services form that such person is providing will be useful to each subject of the production; andGovernment;

changed “(v) direct each person the Government directs to destroy all produce call detail records produced under the order not later than 5 years after to furnish the date of Government forthwith all information, facilities, or technical assistance necessary to accomplish the production of in such records, except for records that are relevant to an authorized investigation (other than a threat assessment) conducted in accordance manner as will protect the secrecy of the production and produce a minimum of interference with subsection (a)(2) the services that such person is providing to protect against international terrorism.”each subject of the production; and

added “(vi) direct the Government to—

added “(I) adopt minimization procedures that require the prompt destruction of all call detail records produced under the order that the Government determines are not foreign intelligence information; and

added “(II) destroy all call detail records produced under the order as prescribed by such procedures.”

“(i) Emergency authority for production of tangible things

“(1) Notwithstanding any other provision of this section, the Attorney General may require the emergency production of tangible things if the Attorney General—

“(A) reasonably determines that an emergency situation requires the production of tangible things before an order authorizing such production can with due diligence be obtained;

“(B) reasonably determines that the factual basis for the issuance of an order under this section to approve such production of tangible things exists;

“(C) informs, either personally or through a designee, a judge having jurisdiction under this section at the time the Attorney General requires the emergency production of tangible things that the decision has been made to employ the authority under this subsection; and

“(D) makes an application in accordance with this section to a judge having jurisdiction under this section as soon as practicable, but not later than 7 days after the Attorney General requires the emergency production of tangible things under this subsection.

“(2) If the Attorney General authorizes the emergency production of tangible things under paragraph (1), the Attorney General shall require that the minimization procedures required by this section for the issuance of a judicial order be followed.

“(3) In the absence of a judicial order approving the production of tangible things under this subsection, the production shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time the Attorney General begins requiring the emergency production of such tangible things, whichever is earliest.

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

“(5) If such application for approval is denied, or in any other case where the production of tangible things is terminated and no order is issued approving the production, no information obtained or evidence derived from such production shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such production shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

“(6) The Attorney General shall assess compliance with the requirements of paragraph (5).”

Section 501(e) (50 U.S.C. 1861(e)) is amended to read as follows:

changed “(e) No cause of action shall lie in any court against a person who produces tangible things or provides information, facilities, or technical assistance pursuant to an order issued or an emergency production required under this section. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.”“(e)

added “(1) No cause of action shall lie in any court against a person who—

added “(A) produces tangible things or provides information, facilities, or technical assistance pursuant to an order issued or an emergency production required under this section; or

added “(B) otherwise provides technical assistance to the Government under this section or to implement the amendments made to this section by the USA FREEDOM Act.

added “(2) A production or provision of information, facilities, or technical assistance described in paragraph (1) shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.”

Section 501 (50 U.S.C. 1861), as amended by section 102 of this Act, is further amended by adding at the end the following new subsection:

changed “(j) Compensation—The Government shall compensate, at the prevailing rate, compensate a person for producing tangible things or providing information, facilities, or assistance in accordance with an order issued or an emergency production required under this section.”reasonable expenses incurred for—

added “(1) producing tangible things or providing information, facilities, or assistance in accordance with an order issued with respect to an application described in subsection (b)(2)(C) or an emergency production under subsection (i) that, to comply with subsection (i)(1)(D), requires an application described in subsection (b)(2)(C); or

added “(2) otherwise providing technical assistance to the Government under this section or to implement the amendments made to this section by the USA FREEDOM Act.”

Section 501 (50 U.S.C. 1861), as amended by section 106 of this Act, is further amended by adding at the end the following new subsection:

“(k) Definitions—In this section:

changed “(1) Call detail record defined—The record—The term “call detail record”—

“(A) means session identifying information (including originating or terminating telephone number, International Mobile Subscriber Identity number, or International Mobile Station Equipment Identity number), a telephone calling card number, or the time or duration of a call; and

“(B) does not include—

“(i) the contents of any communication (as defined in section 2510(8) of title 18, United States Code);

“(ii) the name, address, or financial information of a subscriber or customer; or

“(iii) cell site location information.

changed “(2) Specific selection term—The term “specific selection term” means a discrete term, such as a term used to uniquely describe specifically identifying a person, entity, account, address, or account.”device, used by the Government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the Government.”

Section 106A of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 120 Stat. 200) is amended—

“(C) with respect to calendar years 2012 through 2014, an examination of the minimization procedures used in relation to orders under section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) and whether the minimization procedures adequately protect the constitutional rights of United States persons;”

“(3) Calendar years 2012 through 2014—Not later than December 31, 2015, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under subsection (a) for calendar years 2012 through 2014.”

“(d) Intelligence assessment

“(1) In general—For the period beginning on January 1, 2012, and ending on December 31, 2014, the Inspector General of the Intelligence Community shall assess—

“(A) the importance of the information acquired under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) to the activities of the intelligence community;

“(B) the manner in which that information was collected, retained, analyzed, and disseminated by the intelligence community;

“(C) the minimization procedures used by elements of the intelligence community under such title and whether the minimization procedures adequately protect the constitutional rights of United States persons; and

“(D) any minimization procedures proposed by an element of the intelligence community under such title that were modified or denied by the court established under section 103(a) of such Act (50 U.S.C. 1803(a)).

changed “(2) Submission date for assessment—Not later than December 31, 2015, 180 days after the date on which the Inspector General of the Department of Justice submits the report required under subsection (c)(3), the Inspector General of the Intelligence Community shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the assessment for calendar years 2012 through 2014.”

“(g) Definitions—In this section:

“(1) Intelligence community—The term “intelligence community” has the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003).

“(2) United States person—The term “United States person” has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).”

removed The amendments made by sections 101 through 103 shall take effect on the date that is 180 days after the date of the enactment of this Act.

changed “(5) “(h) The term minimization Attorney General shall ensure that appropriate policies and procedures means—are in place to safeguard nonpublicly available information concerning United States persons that is collected through the use of a pen register or trap and trace device installed under this section. Such policies and procedures shall, to the maximum extent practicable and consistent with the need to protect national security, include protections for the collection, retention, and use of information concerning United States persons.”

removed “(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the installation and use of a pen register or trap and trace device to minimize the retention and prohibit the dissemination of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

removed “(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1), shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance; and

removed “(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.”

changed “(4) a statement “(d) Information collected through the use of proposed minimization procedures.”a pen register or trap and device installed under this section shall be subject to the policies and procedures required under section 402(h).”

removed “(iv) the minimization procedures be followed; and”

removed “(h) At or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved under an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated.”

changed Section 702(b)(2) 702(e)(1) (50 U.S.C. 1881a(b)(2)) 1881a(e)(1)) is amended by striking “the purpose” and inserting “a purpose”.amended—

added “(A) meet”

added “(B) consistent with such definition—

added “(i) minimize the acquisition, and prohibit the retention and dissemination, of any communication as to which the sender and all intended recipients are determined to be located in the United States at the time of acquisition, consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; and

added “(ii) prohibit the use of any discrete communication that is not to, from, or about the target of an acquisition and is to or from an identifiable United States person or a person reasonably believed to be located in the United States, except to protect against an immediate threat to human life.”

changed Section 702(e)(1) 702(i)(3) (50 U.S.C. 1881a(e)(1)) 1881a(i)(3)) is amended—amended by adding at the end the following new subparagraph:

added “(D) Limitation on use of information

added “(i) In general—Except as provided in clause (ii), to the extent the Court orders a correction of a deficiency in a certification or procedures under subparagraph (B), no information obtained or evidence derived pursuant to the part of the certification or procedures that has been identified by the Court as deficient concerning any United States person shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired pursuant to such part of such certification shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of the United States person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

added “(ii) Exception—If the Government corrects any deficiency identified by the order of the Court under subparagraph (B), the Court may permit the use or disclosure of information obtained before the date of the correction under such minimization procedures as the Court shall establish for purposes of this clause.”

removed “(A) meet”

removed “(B) consistent with such definition, minimize the acquisition, and prohibit the retention and dissemination, of any communication as to which the sender and all intended recipients are determined to be located in the United States and prohibit the use of any discrete, non-target communication that is determined to be to or from a United States person or a person who appears to be located in the United States, except to protect against an immediate threat to human life.”

Section 103 (50 U.S.C. 1803) is amended by adding at the end the following new subsection:

“(i) Amicus curiae

“(1) Authorization—A court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time—

“(A) shall appoint an individual 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, presents a novel or significant interpretation of the law, unless the court issues a written finding that such appointment is not appropriate; and

“(B) may appoint an individual to serve as amicus curiae in any other instance as such court deems appropriate.

changed “(2) Designation—The presiding judges of the courts established under subsections (a) and (b) shall jointly designate not less than 5 individuals to be eligible to serve as amicus curiae. Such individuals shall be persons who possess expertise in privacy and civil liberties, intelligence collection, telecommunications, or any other area of law that may lend legal or technical expertise to the courts and who have been determined by appropriate executive branch officials to be eligible for access to classified information.

“(3) Duties—An individual appointed to serve as amicus curiae under paragraph (1) shall carry out the duties assigned by the appointing court. Such court may authorize the individual appointed to serve as amicus curiae to review any application, certification, petition, motion, or other submission that the court determines is relevant to the duties assigned by the court.

“(4) Notification—The presiding judges of the courts established under subsections (a) and (b) shall notify the Attorney General of each exercise of the authority to appoint an individual to serve as amicus curiae under paragraph (1).

“(5) Assistance—A court established under subsection (a) or (b) may request and receive (including on a non-reimbursable basis) the assistance of the executive branch in the implementation of this subsection.

“(6) Administration—A court established under subsection (a) or (b) may provide for the designation, appointment, removal, training, or other support for an individual appointed to serve as amicus curiae under paragraph (1) in a manner that is not inconsistent with this subsection.”

“602. Declassification of significant decisions, orders, and opinions

changed “(a) Declassification required—Subject to subsection (b), the Director of National Intelligence, in consultation with the Attorney General General, shall conduct a declassification review of each decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (as defined in section 601(e)) that includes a significant construction or interpretation of any provision of this Act Act, including a construction or interpretation of the term “specific selection term”, and, consistent with that review, make publicly available to the greatest extent practicable each such decision, order, or opinion.

changed “(b) Redacted form—The Director of National Intelligence, in consultation with the Attorney General General, may satisfy the requirement under subsection (a) to make a decision, order, or opinion described in such subsection publicly available to the greatest extent practicable by making such decision, order, or opinion publicly available in redacted form.

changed “(c) National security waiver—The Director of National Intelligence, in consultation with the Attorney General General, may waive the requirement to declassify and make publicly available a particular decision, order, or opinion under subsection (a) if the Attorney General—if—

changed “(1) the Director of National Intelligence, in consultation with the Attorney General, determines that a waiver of such requirement is necessary to protect the national security of the United States or properly classified intelligence sources or methods; and

changed “(2) the Director of National Intelligence makes publicly available an unclassified summary statement prepared by the Attorney General, in consultation with the Director of such decision, order, or opinion.”National Intelligence—

added “(A) summarizing the significant construction or interpretation of a provision under this Act; and

added “(B) that specifies that the statement has been prepared by the Attorney General and constitutes no part of the opinion of the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review.”

added Section 502(b) (50 U.S.C. 1862(b)), as amended by section 601 of this Act, is further amended—

added “(1) a summary of all compliance reviews conducted by the Federal Government of the production of tangible things under section 501;”

removed “(1) any compliance reviews conducted by the Federal Government of the production of tangible things under section 501;”

removed “(6) any compliance reviews conducted by the Federal Government of electronic surveillance, physical searches, the installation of pen register or trap and trace devices, access to records, or acquisitions conducted under this Act.”

“603. Annual report on orders entered

changed “The “(a) Report by Director of the Administrative Office of the United States Courts—The Director of the Administrative Office of the United States Courts shall annually submit to the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate and, subject to a declassification review by the Attorney General and Director of National Intelligence, make publicly available on an Internet website—

“(1) the number of orders entered under each of sections 105, 304, 402, 501, 702, 703, and 704;

“(2) the number of orders modified under each of those sections;

“(3) the number of orders denied under each of those sections; and

changed “(4) the number of appointments of an individual to serve as amicus curiae under section 103, including the name of each individual appointed to serve as amicus curiae.”curiae.

added “(b) Report by Director of National Intelligence—The Director of National Intelligence shall annually make publicly available a report that identifies, for the preceding 12-month period—

added “(1) the total number of orders issued pursuant titles I and III and sections 703 and 704 and the estimated number of targets affected by such orders;

added “(2) the total number of orders issued pursuant to section 702 and the estimated number of targets affected by such orders;

added “(3) the total number of orders issued pursuant to title IV and the estimated number of targets affected by such orders;

added “(4) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and the estimated number of targets affected by such orders;

added “(5) the total number of orders issued pursuant to applications made under section 501(b)(2)(C) and the estimated number of targets affected by such orders; and

added “(6) the total number of national Security letters issued and the number of requests for information contained within such national security letters.

added “(c) National security letter defined—The term “national security letter” means any of the following provisions:

added “(1) Section 2709 of title 18, United States Code.

added “(2) Section 1114(a)(5)(A) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)).

added “(3) Subsection (a) or (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u(a), 1681u(b)).

added “(4) Section 627(a) of the Fair Credit Reporting Act (15 U.S.C. 1681v(a)).”

“604. Public reporting by persons subject to orders

“(a) Reporting—A person may semiannually publicly report the following information with respect to the preceding half year using one of the following structures:

changed “(1) A Subject to subsection (b), a report that aggregates the number of orders or directives national security letters the person was required to comply with in the following separate categories:

changed “(A) Criminal process, subject to no restrictions.The number of national security letters received, reported in bands of 1000 starting with 0-999.

changed “(B) The number of customer accounts affected by national security letters received, letters, reported in bands of 1000 starting with 0-999.

changed “(C) The number of customer accounts affected by national security letters, orders under this Act for content, reported in bands of 1000 starting with 0-999.

changed “(D) The number of With respect to content orders under this Act for content, reported Act, in bands of 1000 starting with 0-999.0-999, the number of customer accounts affected under orders under title I;

changed “(E) With respect to content The number of orders under this Act, Act for non-content, reported in bands of 1000 starting with 0-999—0-999.

changed “(i) “(F) With respect to non-content orders under this Act, in bands of 1000 starting with 0-999, the number of customer accounts affected under orders under title I; andunder—

changed “(ii) the number of customer selectors targeted under orders under “(i) title VII.IV;

changed “(F) The number of orders under this Act for non-content, reported in bands of 1000 starting “(ii) title V with 0-999.respect to applications described in section 501(b)(2)(B); and

changed “(G) With “(iii) title V with respect to non-content orders under this Act, applications described in bands of 1000 starting with 0-999—section 501(b)(2)(C).

changed “(i) “(2) A report that aggregates the number of customer accounts affected under orders under—orders, directives, or national security letters the person was required to comply with in the following separate categories:

changed “(I) title I;“(A) The total number of all national security process received, including all national security letters and orders or directives under this Act, reported as a single number in a band of 0-249 and thereafter in bands of 250.

changed “(II) title IV;“(B) The total number of customer selectors targeted under all national security process received, including all national security letters and orders or directives under this Act, reported as a single number in a band of 0-249 and thereafter in bands of 250.

changed “(III) title V with respect “(3) Subject to applications described subsection (b), a report that aggregates the number of orders or national security letters the person was required to comply with in section 501(b)(2)(B); andthe following separate categories:

changed “(IV) title V with respect to applications described “(A) The number of national security letters received, reported in section 501(b)(2)(C); andbands of 500 starting with 0-499.

changed “(ii) the “(B) The number of customer selectors targeted under orders under title VII.accounts affected by national security letters, reported in bands of 500 starting with 0-499.

changed “(2) A report that aggregates the “(C) The number of orders or directives the person was required to comply with under this Act for content, reported in the following separate categories:bands of 500 starting with 0-499.

changed “(A) Criminal process, subject to no restrictions.“(D) The number of customer selectors targeted under such orders, in bands of 500 starting with 0-499.

changed “(B) “(E) The total number of all national security process received, including all national security letters and orders under this Act, Act for non-content, reported as a single number in a band of 0-249 and thereafter in bands of 250.500 starting with 0-499.

changed “(C) “(F) The total number of customer selectors targeted under all national security process received, including all national security letters and orders under this Act, such orders, reported as a single number in a band of 0-249 and thereafter in bands of 250.500 starting with 0-499.

changed “(3) A report that aggregates the number “(b) Period of orders or directives the person was required time covered by reports—With respect to comply with a report described in the following separate categories:paragraph (1) or (3) of subsection (a), such report shall only include information—

changed “(A) Criminal process, subject to no restrictions.“(1) except as provided in paragraph (2), for the period of time ending on the date that is at least 180 days before the date of the publication of such report; and

changed “(B) The number of “(2) with respect to an order under this Act or national security letters received, reported in bands of 500 starting letter received with 0-499.respect to a platform, product, or service for which a person did not previously receive such an order or national security letter (not including an enhancement to or iteration of an existing publicly available platform, product, or service), for the period of time ending on the date that is at least 2 years before the date of the publication of such report.

changed “(C) The number “(c) Other forms of customer accounts affected by national security letters, reported agreed to publication—Nothing in bands this section shall be construed to prohibit the Government and any person from jointly agreeing to the publication of 500 starting with 0-499.information referred to in this subsection in a time, form, or manner other than as described in this section.

changed “(D) The number of orders under this Act for content, reported “(d) National security letter defined—The term “national security letter” has the meaning given the term in bands of 500 starting with 0-499.section 603.”

removed “(E) The number of customer selectors targeted under such orders, in bands of 500 starting with 0-499.

removed “(F) The number of orders under this Act for non-content, reported in bands of 500 starting with 0-499.

removed “(G) The number of customer selectors targeted under such orders, reported in bands of 500 starting with 0-499.

removed “(b) National security letter defined—The term “national security letter” means any of the following provisions:

removed “(1) Section 2709 of title 18, United States Code.

removed “(2) Section 1114(a)(5)(A) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)).

removed “(3) Subsection (a) or (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u(a), 1681u(b)).

removed “(4) Section 627(a) of the Fair Credit Reporting Act (15 U.S.C. 1681v(a)).”

Section 601(c)(1) (50 U.S.C. 1871(c)) is amended to read as follows:

changed “(1) not later than 45 days after the date on which the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review issues a decision, order, or opinion opinion, including any denial or modification of an application under this Act, that includes a significant construction or interpretation of any provision of this Act or a denial of a request for an order or a modification of a request for an order, or results in a change of application of any provision of this Act or a new application of any provision of this Act—Act, a copy of such decision, order, or opinion and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion; and”

removed “(A) a copy of such decision, order, or opinion and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion; and

removed “(B) with respect to such decision, order, or opinion, a brief statement of the relevant background factual information, questions of law, legal analysis, and decision rendered; and”