H.R. 6570 — what changed
Protect Liberty and End Warrantless Surveillance Act of 2023
From Introduced in House to Reported in House. 6 sections amended and 4 added between Introduced in House and Reported in House.
Section 1 Short title
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This Act may be cited as the “Protect Liberty and End Warrantless Surveillance Act”.Act of 2023”.
Sec. 2 Query procedure reform
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Limitation on eligibility To to conduct queries— Section 702(f)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)(1)) is amended by adding at the end the following:
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“(D) Limitation on eligibility of FBI personnel To to conduct United States person queries—The Attorney General shall ensure that the procedures adopted under subparagraph (A) limit the authority to conduct queries such that—
“(i) for each field office of the Federal Bureau of Investigation, the most senior official whose primary duty station is that field office is authorized to designate not more than five individuals whose primary duty station is that field office who are eligible to conduct a query using a United States person query term; and
“(ii) for the headquarters of the Federal Bureau of Investigation, the Director of the Federal Bureau of Investigation is authorized to designate not more than five individuals whose primary duty station is the Headquarters of the Federal Bureau of Investigation who are eligible to conduct a query using a United States person query term.”
Prohibition on warrantless queries for the communications of United States persons and persons located in the United States— Section 702(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as amended by subsection (a), is further amended—
in paragraph (1)—
in subparagraph (A), by inserting “and the limitations and requirements in paragraph (2)” after “Constitution of the United States”; and
in subparagraph (B), by striking “United States person query term used for a query” and inserting “term for a United States person or person reasonably believed to be in the United States used for a query as required by paragraph (3)”;
by redesignating paragraph (3) as paragraph (6); and
by striking paragraph (2) and inserting the following:
“(2) Prohibition on warrantless queries for the communications and other information of United States persons and persons located in the United States
“(A) In general—Except as provided in subparagraphs (B) and (C), no officer or employee of the United States may conduct a query of information acquired under this section in an effort to find communications or information the compelled production of which would require a probable cause warrant if sought for law enforcement purposes in the United States, of or about 1 or more United States persons or persons reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information.
“(B) Exceptions for concurrent authorization, consent, emergency situations, and certain defensive cybersecurity queries
“(i) In general—Subparagraph (A) shall not apply to a query related to a United States person or person reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information if—
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“(I) such person is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105 or 304 of this Act, or a warrant issued pursuant to the Federal Rules of Criminal Procedure by a court of competent jurisdiction covering authorizing the period conduct of the query;
“(II)
“(aa) the officer or employee carrying out the query has a reasonable belief that—
“(AA) an emergency exists involving an imminent threat of death or serious bodily harm; and
“(BB) in order to prevent or mitigate this threat, the query must be conducted before authorization pursuant to subparagraph (I) can, with due diligence, be obtained; and
“(bb) a description of the query is provided to the Foreign Intelligence Surveillance Court and the congressional intelligence committees and the Committees on the Judiciary of the House of Representatives and of the Senate in a timely manner;
“(III) such person or, if such person is incapable of providing consent, a third party legally authorized to consent on behalf of such person, has provided consent to the query on a case-by-case basis; or
“(IV)
“(aa) the query uses a known cybersecurity threat signature as a query term;
“(bb) the query is conducted, and the results of the query are used, for the sole purpose of identifying targeted recipients of malicious software and preventing or mitigating harm from such malicious software;
“(cc) no additional contents of communications retrieved as a result of the query are accessed or reviewed; and
“(dd) all such queries are reported to the Foreign Intelligence Surveillance Court.
“(ii) Limitations
“(I) Use in subsequent proceedings and investigations—No information retrieved pursuant to a query authorized by clause (i)(II) or information derived from such query may be used, received in evidence, or otherwise disseminated in any investigation, 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, except in proceedings or investigations that arise from the threat that prompted the query.
“(II) Assessment of compliance—The Attorney General shall not less frequently than annually assess compliance with the requirements under subclause (I).
“(C) Matters relating to emergency queries
“(i) Treatment of denials—In the event that a query for communications or information, the compelled production of which would require a probable cause warrant if sought for law enforcement purposes in the United States, of or about 1 more United States persons or persons reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information is conducted pursuant to an emergency authorization described in subparagraph (B)(i)(I) and the application for such emergency authorization is denied, or in any other case in which the query has been conducted and no order is issued approving the query—
“(I) no information obtained or evidence derived from such query may be used, received in evidence, or otherwise disseminated in any investigation, 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
“(II) no information concerning any United States person or person reasonably believed to be located in the United States at the time of the query or the time of the communication or the creation of the information acquired from such query may subsequently be used or disclosed in any other manner 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.
“(ii) Assessment of compliance—The Attorney General shall not less frequently than annually assess compliance with the requirements under clause (i).
“(D) Foreign intelligence purpose—Except as provided in subparagraph (B)(i), no officer or employee of the United States may conduct a query of information acquired under this section in an effort to find information of or about 1 or more United States persons or persons reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information unless the query is reasonably likely to retrieve foreign intelligence information.
“(3) Documentation—No officer or employee of the United States may conduct a query of information acquired under this section in an effort to find information of or about 1 or more United States persons or persons reasonably believed to be located in the United States at the time of query or the time of the communication or the creation of the information, unless first an electronic record is created, and a system, mechanism, or business practice is in place to maintain such record, that includes the following:
“(A) Each term used for the conduct of the query.
“(B) The date of the query.
“(C) The identifier of the officer or employee.
“(D) A statement of facts showing that the use of each query term included under subparagraph (A) is—
“(i) reasonably likely to retrieve foreign intelligence information; or
“(ii) in furtherance of the exceptions described in paragraph (2)(B)(i).
“(4) Prohibition on results of metadata query as a basis for access to communications and other protected information—If a query of information acquired under this section is conducted in an effort to find communications metadata of 1 or more United States persons or persons reasonably believed to be located in the United States at the time of the query or communication and the query returns such metadata, the results of the query shall not be used as a basis for reviewing communications or information a query for which is otherwise prohibited under this section.
“(5) Federated datasets—The prohibitions and requirements in this section shall apply to queries of federated and mixed datasets that include information acquired under this section, unless a mechanism exists to limit the query to information not acquired under this section.”
Sec. 6 Application for an order approving electronic surveillance
Disclosure requirement— Section 104(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804(a)) is amended—
in paragraph (6)(E)(ii), by inserting before the semicolon at the end “(and a description of such techniques)”;
in paragraph (8), by striking “and” at the end;
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in paragraph (9), by striking the period at the end and inserting a semicolon; “; and” ; and
by inserting after paragraph (9) the following:
“(10) all information material to the application, including any information that tends to rebut—
“(A) any allegation set forth in the application; or
“(B) the existence of probable cause to believe that—
“(i) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
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“(ii) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; andpower.”
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“(11) an affidavit executed by each Federal employee who contributed to the drafting of the application attesting to the accuracy of the application.”
Prohibition on use of certain information— Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended by adding at the end the following:
“(e) The statement of facts and circumstances under subsection (a)(3) may only include information obtained from the content of a media source or information gathered by a political campaign if—
“(1) such information is disclosed in the application as having been so obtained or gathered; and
“(2) such information is not the sole source of the information used to justify the applicant’s belief described in subsection (a)(3).”
Limitation on issuance of order— Section 105(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(a)) is amended—
in paragraph (3), by striking “; and” and inserting a semicolon;
in paragraph (4), by striking the period and inserting “; and”; and
by adding at the end the following:
“(5) the statement of facts and circumstances under subsection (a)(3) may only include information obtained from the content of a media source or information gathered by a political campaign if—
“(A) such information is disclosed in the application as having been so obtained or gathered; and
“(B) such information is not the sole source of the information used to justify the applicant’s belief described in subsection (a)(3).”
Sec. 12 Extension of title VII of FISA; expiration of FISA authorities; effective dates
Effective dates— Section 403(b) of the FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat. 2474) is amended—
in paragraph (1)—
by striking “December 31, 2023” and inserting “December 31, 2026”; and
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by striking “, as amended by section 101 101(a) and by the FISA Amendments Reauthorization Act of 2017,” and inserting “, as most recently amended,”; and
in paragraph (2) in the matter preceding subparagraph (A), by striking “December 31, 2023” and inserting “December 31, 2026”.
Conforming Amendments— Section 404(b) of the FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat. 2476), is amended—
in paragraph (1)—
in the heading, by striking “December 31, 2023” and inserting “December 31, 2026”; and
by striking “, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017,” and inserting “, as most recently amended,”;
in paragraph (2), by striking “, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017,” and inserting “, as most recently amended,”; and
in paragraph (4)—
by striking “, as added by section 101(a) and amended by the FISA Amendments Reauthorization Act of 2017,” both places it appears and inserting “, as added by section 101(a) and as most recently amended,”; and
by striking “, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017,” and inserting “, as most recently amended,” both places it appears.
Sec. 13 Criminal penalties for violations of FISA
In general— Section 109 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809) is amended as follows:
Additional offenses— In subsection (a)—
in the matter preceding paragraph (1), by striking “intentionally”;
in paragraph (1)—
by inserting “intentionally” before “engages in”; and
by striking “or” at the end;
in paragraph (2)—
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by inserting “intentionally” before “discloses “disclose or uses”; and
by striking the period at the end and inserting a semicolon; and
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by adding at the end the following: .following:
“(3) knowingly submits any document to or makes any false statement before the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review, knowing such document or statement to contain—
“(A) a false material declaration; or
“(B) a material omission; or
“(4) knowingly discloses the existence of an application for an order authorizing surveillance under this title, or any information contained therein, to any person not authorized to receive such information.”
Enhanced penalties— In subsection (c), is amended to read as follows:
“(c) Penalties—In the case of an offense under any of paragraphs (1) through (4) of subsection (a), the offense is punishable by a fine of not more than $10,000 or imprisonment for not more than 8 years, or both.”
Rule of construction— This Act and the amendments made by this Act may not be construed to interfere with the enforcement of section 798 of title 18, United States Code, or any other provision of law regarding the unlawful disclosure of classified information.
Sec. 17 Agency procedures to ensure compliance
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Agency procedures To to ensure compliance— Title VI of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871 et seq.), as amended by this Act, is further amended by adding at the end the following:
“607. Agency procedures to ensure compliance
“The head of each Federal department or agency authorized to acquire foreign intelligence information under this Act shall establish procedures—
“(1) setting forth clear rules on what constitutes a violation of this Act by an officer or employee of that department or agency; and
“(2) for taking appropriate adverse personnel action against any officer or employee of the department or agency who engages in such a violation, including more severe adverse actions for any subsequent violation.”
Clerical amendment— The table of contents for the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by this Act, is further amended by adding at the end the following:
Report— Not later than 3 months after the date of enactment of this Act, the head of each Federal department or agency that is required to establish procedures under section 607 of the Foreign Intelligence Surveillance Act of 1978 shall report to Congress on such procedures.
Sec. 23 Prohibition on reverse targeting of United States persons and persons located in the United States
addedadded Section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) is amended—
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in subsection (b)(2)—
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by striking “may not intentionally” and inserting the following:
added “(A) intentionally”
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in subparagraph (A), as designated by subparagraph (A) of this paragraph, by striking “if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;” and inserting the following:
added “(i)
added “(I) there is a reasonable belief that an emergency exists involving an imminent threat of death or serious bodily harm to such United States person or person reasonably believed to be located in the United States at the time of the query or the time of acquisition or communication;
added “(II) the information is sought for the purpose of assisting that person; and
added “(III) a description of the targeting is provided to the Foreign Intelligence Surveillance Court and the appropriate committees of Congress in a timely manner; or
added “(ii) the United States person or persons reasonably believed to be located in the United States at the time of acquisition or communication has provided consent to the targeting, or if such person is incapable of providing consent, a third party legally authorized to consent on behalf of such person has provided consent; and
added “(B) in the case of information acquired pursuant to subparagraph (A)(i) or evidence derived from such targeting, be used, received in evidence, or otherwise disseminated in any investigation, 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, except in proceedings or investigations that arise from the threat that prompted the targeting;”
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in subsection (d)(1), by amending subparagraph (A) to read as follows:
added “(A) ensure that—
added “(i) any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be non-United States persons located outside the United States; and
added “(ii) except as provided in subsection (b)(2), a significant purpose of an acquisition is not to acquire the information of 1 or more United States persons or persons reasonably believed to be in the United States at the time of acquisition or communication; and”
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in subsection (h)(2)(A)(i), by amending subclause (I) to read as follows:
added “(I) ensure that—
added “(aa) an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be non-United States persons located outside the United States; and
added “(bb) except as provided in subsection (b)(2), a significant purpose of an acquisition is not to acquire the information of 1 or more United States persons or persons reasonably believed to be in the United States at the time of acquisition or communication; and”
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in subsection (j)(2)(B), by amending clause (i) to read as follows:
added “(i) ensure that—
added “(I) an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be non-United States persons located outside the United States; and
added “(II) except as provided in subsection (b)(2), a significant purpose of an acquisition is not to acquire the information of 1 or more United States persons or persons reasonably believed to be in the United States at the time of acquisition or communication; and”
Sec. 24 Required disclosure of relevant information in foreign intelligence surveillance act of 1978 applications
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In general— The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following:
added “IX Certification regarding accuracy procedures
added “901. Certification regarding accuracy procedures
added “(a) Definition of accuracy procedures—In this section, the term “accuracy procedures” means specific procedures, adopted by the Attorney General, to ensure that an application for a court order under this Act, including any application for renewal of an existing order, is accurate and complete, including procedures that ensure, at a minimum, that—
added “(1) the application reflects all information that might reasonably call into question the accuracy of the information or the reasonableness of any assessment in the application, or otherwise raises doubts about the requested findings;
added “(2) the application reflects all material information that might reasonably call into question the reliability and reporting of any information from a confidential human source that is used in the application;
added “(3) a complete file documenting each factual assertion in an application is maintained;
added “(4) the applicant coordinates with the appropriate elements of the intelligence community (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)), concerning any prior or existing relationship with the target of any surveillance, search, or other means of investigation, and discloses any such relationship in the application;
added “(5) before any application targeting a United States person is made, the applicant Federal officer shall document that the officer has collected and reviewed for accuracy and completeness supporting documentation for each factual assertion in the application; and
added “(6) the applicant Federal agency establish compliance and auditing mechanisms on an annual basis to assess the efficacy of the accuracy procedures that have been adopted and report such findings to the Attorney General.
added “(b) Statement and certification of accuracy procedures—Any Federal officer making an application for a court order under this Act shall include with the application—
added “(1) a description of the accuracy procedures employed by the officer or the officer’s designee; and
added “(2) a certification that the officer or the officer’s designee has collected and reviewed for accuracy and completeness—
added “(A) supporting documentation for each factual assertion contained in the application;
added “(B) all information that might reasonably call into question the accuracy of the information or the reasonableness of any assessment in the application, or otherwise raises doubts about the requested findings; and
added “(C) all material information that might reasonably call into question the reliability and reporting of any information from any confidential human source that is used in the application.
added “(c) Necessary finding for court orders—A judge may not enter an order under this Act unless the judge finds, in addition to any other findings required under this Act, that the accuracy procedures described in the application for the order, as required under subsection (b)(1), are actually accuracy procedures as defined in this section.”
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Clerical amendment— The table of contents of the Foreign Intelligence Surveillance Act of 1978 is amended by adding at the end the following:
Sec. 25 Enhanced annual reports by Director of National Intelligence
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In general— Subsection (b) of section 603 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1873(b)) is amended—
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in paragraph (2)(C), by striking the semicolon and inserting “; and”;
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by redesignating paragraphs (3) through (7) as paragraphs (6) through (10), respectively;
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by inserting after paragraph (2) the following:
added “(3) a description of the subject matter of each of the certifications provided under section 702(h);
added “(4) statistics revealing the number of persons and identifiers targeted under section 702(a), disaggregated by certification under which the person or identifier was targeted;
added “(5) the total number of directives issued pursuant to section 702(i)(1), disaggregated by each type of electronic communication service provider described in subparagraphs (A) through (E) of section 701(b)(4);”
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in paragraph (9) (as redesignated in paragraph (2) of this subsection), by striking “and” at the end;
added
in paragraph (10) (as redesignated in paragraph (2) of this subsection), by striking the period at the end and inserting a semicolon;
added
by adding at the end the following:
added “(11)
added “(A) the total number of disseminated intelligence reports derived from collection pursuant to section 702 containing the identities of United States persons regardless of whether the identities of the United States persons were openly included or masked;
added “(B) the total number of disseminated intelligence reports derived from collection not authorized by this Act containing the identities of United States persons regardless of whether the identities of the United States persons were openly included or masked;
added “(C) the total number of disseminated intelligence reports derived from collection pursuant to section 702 containing the identities of United States persons in which the identities of the United States persons were masked;
added “(D) the total number of disseminated intelligence reports derived from collection not authorized by this Act containing the identities of United States persons in which the identities of the United States persons were masked;
added “(E) the total number of disseminated intelligence reports derived from collection pursuant to section 702 containing the identities of United States persons in which the identities of the United States persons were openly included; and
added “(F) the total number of disseminated intelligence reports derived from collection not authorized by this Act containing the identities of United States persons in which the identities of the United States persons were openly included;
added “(12) the number of queries conducted in an effort to find communications or information of or about 1 or more United States persons or persons reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information, where such communications or information were obtained without a court order, subpoena, or other legal process established by statute;
added “(13) the number of criminal proceedings in which the Federal Government or a government of a State or political subdivision thereof entered into evidence or otherwise used or disclosed in a criminal proceeding any information obtained or derived from an acquisition conducted without a court order, subpoena, or other legal process established by statute; and
added “(14) a good faith estimate of what percentage of the communications that are subject to the procedures described in section 309(b)(3) of the Intelligence Authorization Act for Fiscal Year 2015 (50 U.S.C. 1813(b)(3))—
added “(A) are retained for longer than 5 years; and
added “(B) are retained for longer than 5 years in whole in part because they are encrypted.”
added
Repeal of nonapplicability to federal bureau of investigation of certain requirements— Subsection (d) of such section is amended—
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by striking paragraph (2); and
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by redesignating paragraph (3) as paragraph (2).
added
Conforming amendment— Subsection (d)(1) of such section is amended by striking “paragraphs (3), (5), or (6)” and inserting “paragraph (6), (8), or (9)”.
Sec. 26 Quarterly report
addedadded Section 707 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881f) is amended by adding at the end the following:
added “(c) Quarterly report—The Attorney General, in consultation with the Director of National Intelligence, shall submit a report, each quarter, to the congressional intelligence committees and to the Committees on the Judiciary of the Senate and of the House of Representatives, which shall include, for that quarter, the following:
added “(1) The total number of warrants issued to conduct a query of information acquired under section 702.
added “(2) The total number of times a query was conducted pursuant to an exception under section 702(f)(2)(B) and which exceptions applied.
added “(3) The total number of queries of information acquired under section 702 that were conducted using a United States person query term or a query term pertaining to a person reasonably believed to be present in the United States as of the date such query was conducted, disaggregated by the agency that conducted the queries.”