50 USC 1805 - Issuance of order

U.S Code last checked for updates: Apr 19, 2024

§ 1805.

Issuance of order

(a)

Necessary findings

Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that—

(1)

the application has been made by a Federal officer and approved by the Attorney General;

(2)

on the basis of the facts submitted by the applicant there is probable cause to believe that—

(A)

the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and

(B)

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;

(3)

the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) of this title; and

(4)

the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804(a)(7)(E) 1

 See References in Text note below.

of this title and any other information furnished under section 1804(d) 1 of this title.

(b)

Determination of probable cause

In determining whether or not probable cause exists for purposes of an order under subsection (a)(2), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.

(c)

Specifications and directions of orders

(1)

Specifications.—

An order approving an electronic surveillance under this section shall specify—

(A)

the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to section 1804(a)(3) of this title;

(B)

the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known;

(C)

the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;

(D)

the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; and

(E)

the period of time during which the electronic surveillance is approved.

(2)

direct— 2

 So in original.

(A)

that the minimization procedures be followed;

(B)

that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;

(C)

that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and

(D)

that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.

(3)

Special directions for certain orders.—

An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of—

(A)

the nature and location of each new facility or place at which the electronic surveillance is directed;

(B)

the facts and circumstances relied upon by the applicant to justify the applicant’s belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;

(C)

a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and

(D)

the total number of electronic surveillances that have been or are being conducted under the authority of the order.

(d)

Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated

(1)

An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that (A) an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title, for the period specified in the application or for one year, whichever is less, and (B) an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.

(2)

Extensions of an order issued under this subchapter may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that (A) an extension of an order under this chapter for a surveillance targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section 1801(a) of this title, or against a foreign power as defined in section 1801(a)(4) of this title that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and (B) an extension of an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for a period not to exceed 1 year.

(3)

At or before the end of the period of time for which electronic surveillance is approved by an order or an extension, 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.

(4)

A denial of the application made under section 1804 of this title may be reviewed as provided in section 1803 of this title.

(e)

Emergency orders

(1)

Notwithstanding any other provision of this subchapter, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General—

(A)

reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained;

(B)

reasonably determines that the factual basis for the issuance of an order under this subchapter to approve such electronic surveillance exists;

(C)

informs, either personally or through a designee, a judge having jurisdiction under section 1803 of this title at the time of such authorization that the decision has been made to employ emergency electronic surveillance; and

(D)

makes an application in accordance with this subchapter to a judge having jurisdiction under section 1803 of this title as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance.

(2)

If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.

(3)

In the absence of a judicial order approving such electronic surveillance, the surveillance 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 of authorization by the Attorney General, whichever is earliest.

(4)

A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.

(5)

In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance 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 political subdivision thereof, and no information concerning any United States person acquired from such surveillance 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).

(f)

Emergencies involving non-United States persons

(1)

Notwithstanding any other provision of this chapter, the lawfully authorized targeting of a non-United States person previously believed to be located outside the United States for the acquisition of foreign intelligence information may continue for a period not to exceed 72 hours from the time that the non-United States person is reasonably believed to be located inside the United States and the acquisition is subject to this subchapter or to subchapter II of this chapter, provided that the head of an element of the intelligence community—

(A)

reasonably determines that a lapse in the targeting of such non-United States person poses a threat of death or serious bodily harm to any person;

(B)

promptly notifies the Attorney General of a determination under subparagraph (A); and

(C)

requests, as soon as practicable, the employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title, as warranted.

(2)

The authority under this subsection to continue the acquisition of foreign intelligence information is limited to a period not to exceed 72 hours and shall cease upon the earlier of the following:

(A)

The employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title.

(B)

An issuance of a court order under this subchapter or subchapter II of this chapter.

(C)

The Attorney General provides direction that the acquisition be terminated.

(D)

The head of the element of the intelligence community conducting the acquisition determines that a request under paragraph (1)(C) is not warranted.

(E)

When the threat of death or serious bodily harm to any person is no longer reasonably believed to exist.

(3)

Nonpublicly available information concerning unconsenting United States persons acquired under this subsection shall not be disseminated during the 72 hour time period under paragraph (1) unless necessary to investigate, reduce, or eliminate the threat of death or serious bodily harm to any person.

(4)

If the Attorney General declines to authorize the employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title, or a court order is not obtained under this subchapter or subchapter II of this chapter, information obtained during the 72 hour acquisition time period under paragraph (1) shall not be retained, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

(5)

Paragraphs (5) and (6) of subsection (e) shall apply to this subsection.

(g)

Testing of electronic equipment; discovering unauthorized electronic surveillance; training of intelligence personnel

Notwithstanding any other provision of this subchapter, officers, employees, or agents of the United States are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to—

(1)

test the capability of electronic equipment, if—

(A)

it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;

(B)

the test is limited in extent and duration to that necessary to determine the capability of the equipment;

(C)

the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and:

(D)

Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;

(2)

determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if—

(A)

it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;

(B)

such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and

(C)

any information acquired by such surveillance is used only to enforce chapter 119 of title 18, or section 605 of title 47, or to protect information from unauthorized surveillance; or

(3)

train intelligence personnel in the use of electronic surveillance equipment, if—

(A)

it is not reasonable to—

(i)

obtain the consent of the persons incidentally subjected to the surveillance;

(ii)

train persons in the course of surveillances otherwise authorized by this subchapter; or

(iii)

train persons in the use of such equipment without engaging in electronic surveillance;

(B)

such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and

(C)

no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.

(h)

Retention of certifications, applications and orders

Certifications made by the Attorney General pursuant to section 1802(a) of this title and applications made and orders granted under this subchapter shall be retained for a period of at least ten years from the date of the certification or application.

(i)

Bar to legal action

No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search.

(j)

Pen registers and trap and trace devices

In any case in which the Government makes an application to a judge under this subchapter to conduct electronic surveillance involving communications and the judge grants such application, upon the request of the applicant, the judge shall also authorize the installation and use of pen registers and trap and trace devices, and direct the disclosure of the information set forth in section 1842(d)(2) of this title.

(Pub. L. 95–511, title I, § 105, Oct. 25, 1978, 92 Stat. 1790; Pub. L. 98–549, § 6(b)(3), Oct. 30, 1984, 98 Stat. 2804; Pub. L. 106–567, title VI, § 602(b), Dec. 27, 2000, 114 Stat. 2851; Pub. L. 107–56, title II, §§ 206, 207(a)(1), (b)(1), 225, Oct. 26, 2001, 115 Stat. 282, 295; Pub. L. 107–108, title III, § 314(a)(2), (c)(1), Dec. 28, 2001, 115 Stat. 1402, 1403; Pub. L. 107–273, div. B, title IV, § 4005(c), Nov. 2, 2002, 116 Stat. 1812; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 109–177, title I, §§ 102(b)(1), 105(a), 108(a)(2), (b), Mar. 9, 2006, 120 Stat. 195, 203; Pub. L. 110–261, title I, §§ 105(a), 110(c)(1), July 10, 2008, 122 Stat. 2461, 2466; Pub. L. 111–118, div. B, § 1004(a), Dec. 19, 2009, 123 Stat. 3470; Pub. L. 111–141, § 1(a), Feb. 27, 2010, 124 Stat. 37; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748; Pub. L. 112–3, § 2(a), Feb. 25, 2011, 125 Stat. 5; Pub. L. 112–14, § 2(a), May 26, 2011, 125 Stat. 216; Pub. L. 114–23, title VII, §§ 701(a), 705(a), (c), June 2, 2015, 129 Stat. 298, 300; Pub. L. 115–118, title II, § 205(b)(2), Jan. 19, 2018, 132 Stat. 22; Pub. L. 116–69, div. B, title VII, § 1703(a), Nov. 21, 2019, 133 Stat. 1143.)

cite as: 50 USC 1805