Title II — Safeguards and oversight of privacy and civil liberties

S. 2158 · 115th Congress · Nov 16, 2017 · Lineage

II Safeguards and oversight of privacy and civil liberties

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.”

(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.”