H.R. 2048 — what changed

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

“(i) Amicus curiae

“(1) Designation—The presiding judges of the courts established under subsections (a) and (b) shall, not later than 180 days after the enactment of this subsection, jointly designate not fewer than 5 individuals to be eligible to serve as amicus curiae, who shall serve pursuant to rules the presiding judges may establish. In designating such individuals, the presiding judges may consider individuals recommended by any source, including members of the Privacy and Civil Liberties Oversight Board, the judges determine appropriate.

“(2) 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 who has been designated under paragraph (1) 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 finding that such appointment is not appropriate; and

“(B) may appoint an individual or organization to serve as amicus curiae, including to provide technical expertise, in any instance as such court deems appropriate or, upon motion, permit an individual or organization leave to file an amicus curiae brief.

“(3) Qualifications of amicus curiae

“(A) Expertise—Individuals designated under paragraph (1) shall be persons who possess expertise in privacy and civil liberties, intelligence collection, communications technology, or any other area that may lend legal or technical expertise to a court established under subsection (a) or (b).

“(B) Security clearance—Individuals designated pursuant to paragraph (1) shall be persons who are determined to be eligible for access to classified information necessary to participate in matters before the courts. Amicus curiae appointed by the court pursuant to paragraph (2) shall be persons who are determined to be eligible for access to classified information, if such access is necessary to participate in the matters in which they may be appointed.

“(4) Duties—If a court established under subsection (a) or (b) appoints an amicus curiae under paragraph (2)(A), the amicus curiae shall provide to the court, as appropriate—

“(A) legal arguments that advance the protection of individual privacy and civil liberties;

“(B) information related to intelligence collection or communications technology; or

“(C) legal arguments or information regarding any other area relevant to the issue presented to the court.

“(5) Assistance—An amicus curiae appointed under paragraph (2)(A) may request that the court designate or appoint additional amici curiae pursuant to paragraph (1) or paragraph (2), to be available to assist the amicus curiae.

“(6) Access to information

changed “(A) In general—If a court established under subsection (a) or (b) appoints an amicus curiae under paragraph (2)(A), (2), the amicus curiae—

changed “(i) shall have access to all relevant any legal precedent, and any application, certification, petition, motion, or such other materials that the court determines are relevant to the duties of the amicus curiae; and

“(ii) may, if the court determines that it is relevant to the duties of the amicus curiae, consult with any other individuals designated pursuant to paragraph (1) regarding information relevant to any assigned proceeding.

changed “(B) Briefings—The Attorney General may periodically brief or provide relevant materials to amicus curiae individuals designated pursuant to paragraph (1) regarding constructions and interpretations of this Act and legal, technological, and other issues related to actions authorized by this Act.

“(C) Classified Information—An amicus curiae designated or appointed by the court may have access to classified documents, information, and other materials or proceedings only if that individual is eligible for access to classified information and to the extent consistent with the national security of the United States.

“(D) Rule of construction—Nothing in this section shall be construed to require the Government to provide information to an amicus curiae appointed by the court that is privileged from disclosure.

“(7) Notification—A presiding judge of a court established under subsection (a) or (b) shall notify the Attorney General of each exercise of the authority to appoint an individual to serve as amicus curiae under paragraph (2).

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

changed “(9) Administration—A court established under subsection (a) or (b) may provide for the designation, appointment, removal, training, or other support for an individual designated to serve as amicus curiae under paragraph (1) or appointed to serve as amicus curiae under paragraph (2) in a manner that is not inconsistent with this subsection.

“(10) Receipt of information—Nothing in this subsection shall limit the ability of a court established under subsection (a) or (b) to request or receive information or materials from, or otherwise communicate with, the Government or amicus curiae appointed under paragraph (2) on an ex parte basis, nor limit any special or heightened obligation in any ex parte communication or proceeding.

“(j) Review of FISA court decisions—Following issuance of an order under this Act, a court established under subsection (a) shall certify for review to the court established under subsection (b) any question of law that may affect resolution of the matter in controversy that the court determines warrants such review because of a need for uniformity or because consideration by the court established under subsection (b) would serve the interests of justice. Upon certification of a question of law under this subsection, the court established under subsection (b) may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

“(k) Review of FISA court of review decisions

“(1) Certification—For purposes of section 1254(2) of title 28, United States Code, the court of review established under subsection (b) shall be considered to be a court of appeals.

“(2) Amicus curiae briefing—Upon certification of an application under paragraph (1), the Supreme Court of the United States may appoint an amicus curiae designated under subsection (i)(1), or any other person, to provide briefing or other assistance.”

Section 2280 of title 18, United States Code, is amended—

“(d) Definitions—As used in this section, section 2280a, section 2281, and section 2281a, the term—

“(1) applicable treaty means—

“(A) the Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970;

“(B) the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971;

“(C) the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973;

“(D) International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979;

“(E) the Convention on the Physical Protection of Nuclear Material, done at Vienna on 26 October 1979;

“(F) the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988;

“(G) the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988;

“(H) International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997; and

“(I) International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999;

“(2) armed conflict does not include internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature;

“(3) biological weapon means—

“(A) microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective, or other peaceful purposes; or

“(B) weapons, equipment, or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict;

“(4) chemical weapon means, together or separately—

“(A) toxic chemicals and their precursors, except where intended for—

“(i) industrial, agricultural, research, medical, pharmaceutical, or other peaceful purposes;

“(ii) protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons;

“(iii) military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; or

“(iv) law enforcement including domestic riot control purposes,

“(B) munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (A), which would be released as a result of the employment of such munitions and devices; and

“(C) any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (B);

“(5) covered ship means a ship that is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country’s territorial sea with an adjacent country;

“(6) explosive material has the meaning given the term in section 841(c) and includes explosive as defined in section 844(j) of this title;

“(7) infrastructure facility has the meaning given the term in section 2332f(e)(5) of this title;

“(8) international organization has the meaning given the term in section 831(f)(3) of this title;

“(9) military forces of a state means the armed forces of a state which are organized, trained, and equipped under its internal law for the primary purpose of national defense or security, and persons acting in support of those armed forces who are under their formal command, control, and responsibility;

“(10) national of the United States has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22));

“(11) Non-Proliferation Treaty means the Treaty on the Non-Proliferation of Nuclear Weapons, done at Washington, London, and Moscow on 1 July 1968;

“(12) Non-Proliferation Treaty State Party means any State Party to the Non-Proliferation Treaty, to include Taiwan, which shall be considered to have the obligations under the Non-Proliferation Treaty of a party to that treaty other than a Nuclear Weapon State Party to the Non-Proliferation Treaty;

“(13) Nuclear Weapon State Party to the Non-Proliferation Treaty means a State Party to the Non-Proliferation Treaty that is a nuclear-weapon State, as that term is defined in Article IX(3) of the Non-Proliferation Treaty;

“(14) place of public use has the meaning given the term in section 2332f(e)(6) of this title;

“(15) precursor has the meaning given the term in section 229F(6)(A) of this title;

“(16) public transport system has the meaning given the term in section 2332f(e)(7) of this title;

“(17) serious injury or damage means—

“(A) serious bodily injury,

“(B) extensive destruction of a place of public use, State or government facility, infrastructure facility, or public transportation system, resulting in major economic loss, or

“(C) substantial damage to the environment, including air, soil, water, fauna, or flora;

“(18) ship means a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles, or any other floating craft, but does not include a warship, a ship owned or operated by a government when being used as a naval auxiliary or for customs or police purposes, or a ship which has been withdrawn from navigation or laid up;

“(19) source material has the meaning given that term in the International Atomic Energy Agency Statute, done at New York on 26 October 1956;

“(20) special fissionable material has the meaning given that term in the International Atomic Energy Agency Statute, done at New York on 26 October 1956;

“(21) territorial sea of the United States means all waters extending seaward to 12 nautical miles from the baselines of the United States determined in accordance with international law;

“(22) toxic chemical has the meaning given the term in section 229F(8)(A) of this title;

“(23) transport means to initiate, arrange or exercise effective control, including decisionmaking authority, over the movement of a person or item; and

“(24) United States, when used in a geographical sense, includes the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and all territories and possessions of the United States.”

“(e) Exceptions—This section shall not apply to—

“(1) the activities of armed forces during an armed conflict, as those terms are understood under the law of war, which are governed by that law; or

“(2) activities undertaken by military forces of a state in the exercise of their official duties.

“(f) Delivery of suspected offender—The master of a covered ship flying the flag of the United States who has reasonable grounds to believe that there is on board that ship any person who has committed an offense under section 2280 or section 2280a may deliver such person to the authorities of a country that is a party to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. Before delivering such person to the authorities of another country, the master shall notify in an appropriate manner the Attorney General of the United States of the alleged offense and await instructions from the Attorney General as to what action to take. When delivering the person to a country which is a state party to the Convention, the master shall, whenever practicable, and if possible before entering the territorial sea of such country, notify the authorities of such country of the master's intention to deliver such person and the reasons therefor. If the master delivers such person, the master shall furnish to the authorities of such country the evidence in the master’s possession that pertains to the alleged offense.

“(g)

“(1) Civil forfeiture—Any real or personal property used or intended to be used to commit or to facilitate the commission of a violation of this section, the gross proceeds of such violation, and any real or personal property traceable to such property or proceeds, shall be subject to forfeiture.

“(2) Applicable procedures—Seizures and forfeitures under this section shall be governed by the provisions of chapter 46 of title 18, United States Code, relating to civil forfeitures, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in section 981(d) shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security, the Attorney General, or the Secretary of Defense.”

Section 831 of title 18, United States Code, is amended—

“(3) without lawful authority, intentionally carries, sends or moves nuclear material into or out of a country;”

“(5) the offense is committed on board a vessel of the United States or a vessel subject to the jurisdiction of the United States (as defined in section 70502 of title 46) or on board an aircraft that is registered under United States law, at the time the offense is committed;

“(6) the offense is committed outside the United States and against any state or government facility of the United States; or

“(7) the offense is committed in an attempt to compel the United States to do or abstain from doing any act, or constitutes a threat directed at the United States.”

“(d) Nonapplicability—This section does not apply to—

“(1) the activities of armed forces during an armed conflict, as those terms are understood under the law of war, which are governed by that law; or

“(2) activities undertaken by military forces of a state in the exercise of their official duties.”

“(8) the term armed conflict has the meaning given that term in section 2332f(e)(11) of this title;

“(9) the term military forces of a state means the armed forces of a country that are organized, trained and equipped under its internal law for the primary purpose of national defense or security and persons acting in support of those armed forces who are under their formal command, control and responsibility;

“(10) the term state has the same meaning as that term has under international law, and includes all political subdivisions thereof;

“(11) the term state or government facility has the meaning given that term in section 2332f(e)(3) of this title; and

“(12) the term vessel of the United States has the meaning given that term in section 70502 of title 46.”