US Codex
Pub. L.
Notes

Title I — Fisa Business Records Reforms

114th Congress · Approved Jun 2, 2015 · 129 Stat. 268 · Lineage

TITLE I Fisa Business Records Reforms

SEC. 101. Additional Requirements for Call Detail Records.

(a)
Application.— Section 501(b)(2) (50 U.S.C. 1861(b)(2)) is amended—
(1)
in subparagraph (A)—
(A)
in the matter preceding clause (i), by striking “ a statement” and inserting “ in the case of an application other than an application described in subparagraph (C) (including an application for the production of call detail records other than in the manner described in subparagraph (C)), a statement”; and
(B)
in clause (iii), by striking “ ; and” and inserting a semicolon;
(2)
by redesignating subparagraphs (A) and (B) as subparagraphs (B) and (D), respectively; and
(3)
by inserting after subparagraph (B) (as so redesignated) the following new subparagraph:

“(C) in the case of an application for the production on an ongoing basis of call detail records created before, on, or after the date of the 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—

“(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 such investigation; and

“(ii) there is a reasonable, articulable suspicion that such specific selection term is associated with a foreign power engaged in international terrorism or activities in preparation therefor, or an agent of a foreign power engaged in international terrorism or activities in preparation therefor; and”

(b)
Order.— Section 501(c)(2) (50 U.S.C. 1861(c)(2)) is amended—
(1)
in subparagraph (D), by striking “ ; and” and inserting a semicolon;
(2)
in subparagraph (E), by striking the period and inserting “ ; and”; and
(3)
by adding at the end the following new subparagraph:

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

“(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) of this subsection;

“(iii) provide that the Government may require the prompt production of a first set of call detail records using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii);

“(iv) provide that the Government may require the prompt production of a second set of call detail records using session-identifying information or a telephone calling card number identified by the specific selection term used to produce call detail records under clause (iii);

“(v) provide that, when produced, such records be in a form that will be useful to the Government;

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

“(vii) direct the Government to—

“(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

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

SEC. 102. Emergency Authority.

(a)
Authority.— Section 501 (50 U.S.C. 1861) is amended by adding at the end the following new subsection:

“(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 requires 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.

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

(b)
Conforming Amendment.— Section 501(d) (50 U.S.C. 1861(d)) is amended—
(1)
in paragraph (1)—
(A)
in the matter preceding subparagraph (A), by striking “ pursuant to an order” and inserting “ pursuant to an order issued or an emergency production required”;
(B)
in subparagraph (A), by striking “ such order” and inserting “ such order or such emergency production”; and
(C)
in subparagraph (B), by striking “ the order” and inserting “ the order or the emergency production”; and
(2)
in paragraph (2)—
(A)
in subparagraph (A), by striking “ an order” and inserting “ an order or emergency production”; and
(B)
in subparagraph (B), by striking “ an order” and inserting “ an order or emergency production”.

SEC. 103. Prohibition on Bulk Collection of Tangible Things.

(a)
Application.— Section 501(b)(2) (50 U.S.C. 1861(b)(2)), as amended by section 101(a) of this Act, is further amended by inserting before subparagraph (B), as redesignated by such section 101(a) of this Act, the following new subparagraph:

“(A) a specific selection term to be used as the basis for the production of the tangible things sought;”

(b)
Order.— Section 501(c) (50 U.S.C. 1861(c)) is amended—
(1)
in paragraph (2)(A), by striking the semicolon and inserting “ , including each specific selection term to be used as the basis for the production;”; and
(2)
by adding at the end the following new paragraph:

“(3) No order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term that meets the requirements of subsection (b)(2).”

SEC. 104. Judicial Review.

(a)
Minimization Procedures.—
(1)
Judicial review.— Section 501(c)(1) (50 U.S.C. 1861(c)(1)) is amended by inserting after “ subsections (a) and (b)” the following: “ and that the minimization procedures submitted in accordance with subsection (b)(2)(D) meet the definition of minimization procedures under subsection (g)”.
(2)
Rule of construction.— Section 501(g) (50 U.S.C. 1861(g)) is amended by adding at the end the following new paragraph:

“(3) Rule of construction.—Nothing in this subsection shall limit the authority of the court established under section 103(a) to impose additional, particularized minimization procedures with regard to the production, retention, or dissemination of nonpublicly available information concerning unconsenting United States persons, including additional, particularized procedures related to the destruction of information within a reasonable time period.”

(3)
Technical and conforming amendment.— Section 501(g)(1) (50 U.S.C. 1861(g)(1)) is amended—
(A)
by striking “ Not later than 180 days after the date of the enactment of the USA PATRIOT Improvement and Reauthorization Act of 2005, the” and inserting “ The”; and
(B)
by inserting after “ adopt” the following: “ , and update as appropriate,”.
(b)
Orders.— Section 501(f)(2) (50 U.S.C. 1861(f)(2)) is amended—
(1)
in subparagraph (A)(i)—
(A)
by striking “ that order” and inserting “ the production order or any nondisclosure order imposed in connection with the production order”; and
(B)
by striking the second sentence; and
(2)
in subparagraph (C)—
(A)
by striking clause (ii); and
(B)
by redesignating clause (iii) as clause (ii).

SEC. 105. Liability Protection.

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

“(e)

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

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

“(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 of 2015.

“(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.”

SEC. 106. Compensation for Assistance.

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:

“(j) Compensation.—The Government shall compensate a person for reasonable expenses incurred for—

“(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

“(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 of 2015.”

SEC. 107. Definitions.

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:

“(1) In general.—The terms ‘foreign power’, ‘agent of a foreign power’, ‘international terrorism’, ‘foreign intelligence information’, ‘Attorney General’, ‘United States person’, ‘United States’, ‘person’, and ‘State’ have the meanings provided those terms in section 101.

“(2) Address.—The term ‘address’ means a physical address or electronic address, such as an electronic mail address or temporarily assigned network address (including an Internet protocol address).

“(3) Call detail record.—The term ‘call detail record’—

“(A) means session-identifying information (including an originating or terminating telephone number, an International Mobile Subscriber Identity number, or an 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 (as defined in section 2510(8) of title 18, United States Code) of any communication;

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

“(iii) cell site location or global positioning system information.

“(4) Specific selection term.—

“(A) Tangible things.—

“(i) In general.—Except as provided in subparagraph (B), a ‘specific selection term’—

“(I) is a term that specifically identifies a person, account, address, or personal device, or any other specific identifier; and

“(II) is used to limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things.

“(ii) Limitation.—A specific selection term under clause (i) does not include an identifier that does not limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things, such as an identifier that—

“(I) identifies an electronic communication service provider (as that term is defined in section 701) or a provider of remote computing service (as that term is defined in section 2711 of title 18, United States Code), when not used as part of a specific identifier as described in clause (i), unless the provider is itself a subject of an authorized investigation for which the specific selection term is used as the basis for the production; or

“(II) identifies a broad geographic region, including the United States, a city, a county, a State, a zip code, or an area code, when not used as part of a specific identifier as described in clause (i).

“(iii) Rule of construction.—Nothing in this paragraph shall be construed to preclude the use of multiple terms or identifiers to meet the requirements of clause (i).

“(B) Call detail record applications.—For purposes of an application submitted under subsection (b)(2)(C), the term ‘specific selection term’ means a term that specifically identifies an individual, account, or personal device.”

SEC. 108. Inspector General Reports on Business Records Orders.

Section 106A of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 120 Stat. 200) is amended—
(1)
in subsection (b)—
(A)
in paragraph (1), by inserting “ and calendar years 2012 through 2014” after “ 2006”;
(B)
by striking paragraphs (2) and (3);
(C)
by redesignating paragraphs (4) and (5) as paragraphs (2) and (3), respectively; and
(D)
in paragraph (3) (as so redesignated)—
(i)
by striking subparagraph (C) and inserting the following new subparagraph:

“(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;”

; and

(ii)
in subparagraph (D), by striking “ (as such term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)))”;
(2)
in subsection (c), by adding at the end the following new paragraph:

“(3) Calendar years 2012 through 2014.—Not later than 1 year after the date of enactment of the USA FREEDOM Act of 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.”

(3)
by redesignating subsections (d) and (e) as subsections (e) and (f), respectively;
(4)
by inserting after subsection (c) the following new subsection:

“(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)).

“(2) Submission date for assessment.—Not later than 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.”

(5)
in subsection (e), as redesignated by paragraph (3)—
(A)
in paragraph (1)—
(i)
by striking “ a report under subsection (c)(1) or (c)(2)” and inserting “ any report under subsection (c) or (d)”; and
(ii)
by striking “ Inspector General of the Department of Justice” and inserting “ Inspector General of the Department of Justice, the Inspector General of the Intelligence Community, and any Inspector General of an element of the intelligence community that prepares a report to assist the Inspector General of the Department of Justice or the Inspector General of the Intelligence Community in complying with the requirements of this section”; and
(B)
in paragraph (2), by striking “ the reports submitted under subsections (c)(1) and (c)(2)” and inserting “ any report submitted under subsection (c) or (d)”;
(6)
in subsection (f), as redesignated by paragraph (3)—
(A)
by striking “ The reports submitted under subsections (c)(1) and (c)(2)” and inserting “ Each report submitted under subsection (c)”; and
(B)
by striking “ subsection (d)(2)” and inserting “ subsection (e)(2)”; and
(7)
by adding at the end the following new subsection:

“(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).”

SEC. 109. Effective Date.

(a)
In General.— 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.
(b)
Rule of Construction.— Nothing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) as in effect prior to the effective date described in subsection (a) during the period ending on such effective date.

SEC. 110. Rule of Construction.

Nothing in this Act shall be construed to authorize the production of the contents (as such term is defined in section 2510(8) of title 18, United States Code) of any electronic communication from an electronic communication service provider (as such term is defined in section 701(b)(4) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881(b)(4))) under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.).