US Codex
Bill
Notes

Title II — FISA pen register and trap and trace device reforms

S. 1599 · 113th Congress · Oct 29, 2013 · Lineage

II FISA pen register and trap and trace device reforms

Sec. 201 Privacy protections for pen registers and trap and trace devices

(a)
Application— Section 402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended—
(1)
in paragraph (1), by striking “and” at the end; and
(2)
by striking paragraph (2) and inserting the following new paragraphs:

“(2) a statement of facts showing that there are reasonable grounds to believe that the information sought—

“(A) is relevant and material to an authorized investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities (other than a threat assessment), provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution of the United States; and

“(B) pertain to—

“(i) a foreign power or an agent of a foreign power;

“(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

“(iii) an individual in contact with, or known to, a suspected agent of a foreign power; and

“(3) a statement of proposed minimization procedures.”

(b)
Minimization—
(1)
Definition— Section 401 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841) is amended by adding at the end the following new paragraph:

“(4) The term minimization procedures means—

“(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 acquisition and 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;

“(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

“(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.”

(2)
Procedures required— Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended—
(A)
in subsection (d)—
(i)
in paragraph (1), by inserting “and that the proposed minimization procedures meet the definition of minimization procedures under this title” before the period at the end; and
(ii)
in paragraph (2)(B)—
(I)
in clause (ii)(II), by striking “and” after the semicolon; and
(II)
by adding at the end the following new clause:

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

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

“(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 acquired, retained, or disseminated.”

(3)
Emergencies— Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended—
(A)
by redesignating subsection (c) as subsection (d); and
(B)
by inserting after subsection (b) the following new subsection:

“(c) If the Attorney General authorizes the emergency installation and use of a pen register or trap and trace device under this section, the Attorney General shall require that minimization procedures required by this title for the issuance of a judicial order be followed.”

(4)
Use of information— Section 405(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1)) is amended by inserting “and the minimization procedures required under the order approving such pen register or trap and trace device” after “of this section”.
(c)
Transition procedures—
(1)
Orders in effect— Notwithstanding the amendments made by this section, an order entered under section 402(d)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(d)(1)) that is in effect on the effective date of the amendments made by this section shall remain in effect until the expiration of the order.
(2)
Extensions— A request for an extension of an order referred to in paragraph (1) shall be subject to the requirements of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by this Act.

Sec. 202 Inspector general reports on pen registers and trap and trace devices

(a)
Audits— The Inspector General of the Department of Justice shall perform comprehensive audits of the effectiveness and use, including any improper or illegal use, of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841 et seq.) during the period beginning on January 1, 2010, and ending on December 31, 2013.
(b)
Requirements— The audits required under subsection (a) shall include—
(1)
an examination of the use of pen registers and trap and trace devices under such title for calendar years 2010 through 2013;
(2)
an examination of the installation and use of a pen register or trap and trace device on emergency bases under section 403 of such Act (50 U.S.C. 1843);
(3)
an examination of any noteworthy facts or circumstances relating to the use of a pen register or trap and trace device under such title, including any improper or illegal use of the authority provided under such title; and
(4)
an examination of the effectiveness of the authority under such title as an investigative tool, including—
(A)
the importance of the information acquired to the intelligence activities of the Federal Bureau of Investigation;
(B)
the manner in which the information is collected, retained, analyzed, and disseminated by the Federal Bureau of Investigation, including any direct access to the information provided to any other department, agency, or instrumentality of Federal, State, local, or tribal governments or any private sector entity;
(C)
whether, and how often, the Federal Bureau of Investigation used information acquired under a pen register or trap and trace device under such title to produce an analytical intelligence product for distribution within the Federal Bureau of Investigation, to the intelligence community, or to another department, agency, or instrumentality of Federal, State, local, or tribal governments; and
(D)
whether, and how often, the Federal Bureau of Investigation provided information acquired under a pen register or trap and trace device under such title to law enforcement authorities for use in criminal proceedings.
(c)
Report— Not later than December 31, 2014, 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 audits conducted under subsection (a) for calendar years 2010 through 2013.
(d)
Intelligence assessment—
(1)
In general— For the period beginning January 1, 2010, and ending on December 31, 2013, the Inspector General of the Intelligence Community shall—
(A)
assess the importance of the information to the activities of the intelligence community;
(B)
examine the manner in which the information was collected, retained, analyzed, and disseminated;
(C)
describe any noteworthy facts or circumstances relating to orders under title IV of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841 et seq.); and
(D)
examine any minimization procedures used by elements of the intelligence community in relation to pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841 et seq.) and whether the minimization procedures adequately protect the constitutional rights of United States persons.
(2)
Submission dates for assessment— Not later than December 31, 2014, 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 2010 through 2013.
(e)
Prior notice to attorney general and director of national intelligence; comments—
(1)
Notice— Not later than 30 days before the submission of any report under subsection (c) or (d), the Inspector General of the Department of Justice and the Inspector General of the Intelligence Community shall provide the report to the Attorney General and the Director of National Intelligence.
(2)
Comments— The Attorney General or the Director of National Intelligence may provide such comments to be included in any report submitted under subsection (c) or (d) as the Attorney General or the Director of National Intelligence may consider necessary.
(f)
Unclassified form— Each report submitted under subsection (c) and any comments included in that report under subsection (e)(2) shall be in unclassified form, but may include a classified annex.
(g)
Definitions— In this section—
(1)
the terms Attorney General, foreign intelligence information, and United States person have the meanings given those terms in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);
(2)
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);
(3)
the term minimization procedures has the meaning given that term in section 401 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841), as amended by this Act; and
(4)
the terms pen register and trap and trace device have the meanings given those terms in section 3127 of title 18, United States Code.