50 USC 1881a - Procedures for targeting certain persons outside the United States other than United States persons

U.S Code last checked for updates: Apr 29, 2024

§ 1881a.

Procedures for targeting certain persons outside the United States other than United States persons

(a)

Authorization

(b)

Limitations

An acquisition authorized under subsection (a)—

(1)

may not intentionally target any person known at the time of acquisition to be located in the United States;

(2)

may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

(3)

may not intentionally target a United States person reasonably believed to be located outside the United States;

(4)

may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

(5)

may not intentionally acquire communications that contain a reference to, but are not to or from, a target of an acquisition authorized under subsection (a), except as provided under section 103(b) of the FISA Amendments Reauthorization Act of 2017; and

(6)

shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

(c)

Conduct of acquisition

(1)

In general

An acquisition authorized under subsection (a) shall be conducted only in accordance with—

(A)

the targeting and minimization procedures adopted in accordance with subsections (d) and (e); and

(B)

upon submission of a certification in accordance with subsection (h), such certification.

(2)

Determination

(3)

Timing of determination

The Attorney General and the Director of National Intelligence may make the determination under paragraph (2)—

(A)

before the submission of a certification in accordance with subsection (h); or

(B)

by amending a certification pursuant to subsection (j)(1)(C) at any time during which judicial review under subsection (j) of such certification is pending.

(4)

Construction

(d)

Targeting procedures

(1)

Requirement to adopt

The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to—

(A)

ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(B)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

(2)

Judicial review

(e)

Minimization procedures

(1)

Requirement to adopt

(2)

Judicial review

(3)

Publication

The Director of National Intelligence, in consultation with the Attorney General, shall—

(A)

conduct a declassification review of any minimization procedures adopted or amended in accordance with paragraph (1); and

(B)

consistent with such review, and not later than 180 days after conducting such review, make such minimization procedures publicly available to the greatest extent practicable, which may be in redacted form.

(f)

Queries

(1)

Procedures required

(A)

Requirement to adopt

(B)

Record of United States person query terms

(C)

Judicial review

(2)

Access to results of certain queries conducted by FBI

(A)

Court order required for FBI review of certain query results in criminal investigations unrelated to national security

Except as provided by subparagraph (E), in connection with a predicated criminal investigation opened by the Federal Bureau of Investigation that does not relate to the national security of the United States, the Federal Bureau of Investigation may not access the contents of communications acquired under subsection (a) that were retrieved pursuant to a query made using a United States person query term that was not designed to find and extract foreign intelligence information unless—

(i)

the Federal Bureau of Investigation applies for an order of the Court under subparagraph (C); and

(ii)

the Court enters an order under subparagraph (D) approving such application.

(B)

Jurisdiction

(C)

Application

Each application for an order under this paragraph shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subparagraph (B). Each application shall require the approval of the Attorney General based upon the finding of the Attorney General that the application satisfies the criteria and requirements of such application, as set forth in this paragraph, and shall include—

(i)

the identity of the Federal officer making the application; and

(ii)

an affidavit or other information containing a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant that the contents of communications described in subparagraph (A) covered by the application would provide evidence of—

(I)

criminal activity;

(II)

contraband, fruits of a crime, or other items illegally possessed by a third party; or

(III)

property designed for use, intended for use, or used in committing a crime.

(D)

Order

(E)

Exception

(F)

Rule of construction

Nothing in this paragraph may be construed as—

(i)

limiting the authority of the Federal Bureau of Investigation to conduct lawful queries of information acquired under subsection (a);

(ii)

limiting the authority of the Federal Bureau of Investigation to review, without a court order, the results of any query of information acquired under subsection (a) that was reasonably designed to find and extract foreign intelligence information, regardless of whether such foreign intelligence information could also be considered evidence of a crime; or

(iii)

prohibiting or otherwise limiting the ability of the Federal Bureau of Investigation to access the results of queries conducted when evaluating whether to open an assessment or predicated investigation relating to the national security of the United States.

(3)

Definitions

In this subsection:

(A)

The term “contents” has the meaning given that term in section 2510(8) of title 18.

(B)

The term “query” means the use of one or more terms to retrieve the unminimized contents or noncontents located in electronic and data storage systems of communications of or concerning United States persons obtained through acquisitions authorized under subsection (a).

(g)

Guidelines for compliance with limitations

(1)

Requirement to adopt

The Attorney General, in consultation with the Director of National Intelligence, shall adopt guidelines to ensure—

(A)

compliance with the limitations in subsection (b); and

(B)

that an application for a court order is filed as required by this chapter.

(2)

Submission of guidelines

The Attorney General shall provide the guidelines adopted in accordance with paragraph (1) to—

(A)

the congressional intelligence committees;

(B)

the Committees on the Judiciary of the Senate and the House of Representatives; and

(C)

the Foreign Intelligence Surveillance Court.

(h)

Certification

(1)

In general

(A)

Requirement

(B)

Exception

(2)

Requirements

A certification made under this subsection shall—

(A)

attest that—

(i)

there are targeting procedures in place that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court that are reasonably designed to—

(I)

ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(II)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

(ii)

the minimization procedures to be used with respect to such acquisition—

(I)

meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate; and

(II)

have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court;

(iii)

guidelines have been adopted in accordance with subsection (g) to ensure compliance with the limitations in subsection (b) and to ensure that an application for a court order is filed as required by this chapter;

(iv)

the procedures and guidelines referred to in clauses (i), (ii), and (iii) are consistent with the requirements of the fourth amendment to the Constitution of the United States;

(v)

a significant purpose of the acquisition is to obtain foreign intelligence information;

(vi)

the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communication service provider; and

(vii)

the acquisition complies with the limitations in subsection (b);

(B)

include the procedures adopted in accordance with subsections (d) and (e);

(C)

be supported, as appropriate, by the affidavit of any appropriate official in the area of national security who is—

(i)

appointed by the President, by and with the advice and consent of the Senate; or

(ii)

the head of an element of the intelligence community;

(D)

include—

(i)

an effective date for the authorization that is at least 30 days after the submission of the written certification to the court; or

(ii)

if the acquisition has begun or the effective date is less than 30 days after the submission of the written certification to the court, the date the acquisition began or the effective date for the acquisition; and

(E)

if the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2), include a statement that such determination has been made.

(3)

Change in effective date

(4)

Limitation

(5)

Maintenance of certification

(6)

Review

(i)

Directives and judicial review of directives

(1)

Authority

With respect to an acquisition authorized under subsection (a), the Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to—

(A)

immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; and

(B)

maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain.

(2)

Compensation

(3)

Release from liability

(4)

Challenging of directives

(A)

Authority to challenge

(B)

Assignment

(C)

Standards for review

(D)

Procedures for initial review

(E)

Procedures for plenary review

(F)

Continued effect

(G)

Contempt of Court

(5)

Enforcement of directives

(A)

Order to compel

(B)

Assignment

(C)

Procedures for review

(D)

Contempt of Court

(E)

Process

(6)

Appeal

(A)

Appeal to the Court of Review

(B)

Certiorari to the Supreme Court

(j)

Judicial review of certifications and procedures

(1)

In general

(A)

Review by the Foreign Intelligence Surveillance Court

(B)

Time period for review

(C)

Amendments

(2)

Review

The Court shall review the following:

(A)

Certification

(B)

Targeting procedures

The targeting procedures adopted in accordance with subsection (d) to assess whether the procedures are reasonably designed to—

(i)

ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(ii)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

(C)

Minimization procedures

(D)

Querying procedures

(3)

Orders

(A)

Approval

(B)

Correction of deficiencies

If the Court finds that a certification submitted in accordance with subsection (h) does not contain all the required elements, or that the procedures adopted in accordance with subsections (d), (e), and (f)(1) are not consistent with the requirements of those subsections or the fourth amendment to the Constitution of the United States, the Court shall issue an order directing the Government to, at the Government’s election and to the extent required by the Court’s order—

(i)

correct any deficiency identified by the Court’s order not later than 30 days after the date on which the Court issues the order; or

(ii)

cease, or not begin, the implementation of the authorization for which such certification was submitted.

(C)

Requirement for written statement

(D)

Limitation on use of information

(i)

In general

(ii)

Exception

(4)

Appeal

(A)

Appeal to the Court of Review

(B)

Continuation of acquisition pending rehearing or appeal

Any acquisition affected by an order under paragraph (3)(B) may continue—

(i)

during the pendency of any rehearing of the order by the Court en banc; and

(ii)

if the Government files a petition for review of an order under this section, until the Court of Review enters an order under subparagraph (C).

(C)

Implementation pending appeal

(D)

Certiorari to the Supreme Court

(5)

Schedule

(A)

Reauthorization of authorizations in effect

(B)

Reauthorization of orders, authorizations, and directives

(k)

Judicial proceedings

(1)

Expedited judicial proceedings

(2)

Time limits

(l)

Maintenance and security of records and proceedings

(1)

Standards

(2)

Filing and review

(3)

Retention of records

(m)

Assessments 2

 So in original. Probably should be followed by a comma.

reviews, and reporting

(1)

Semiannual assessment

Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f)(1) and the guidelines adopted in accordance with subsection (g) and shall submit each assessment to—

(A)

the Foreign Intelligence Surveillance Court; and

(B)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(i)

the congressional intelligence committees; and

(ii)

the Committees on the Judiciary of the House of Representatives and the Senate.

(2)

Agency assessment

The Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire foreign intelligence information under subsection (a), with respect to the department or element of such Inspector General—

(A)

are authorized to review compliance with the targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f)(1) and the guidelines adopted in accordance with subsection (g);

(B)

with respect to acquisitions authorized under subsection (a), shall review the number of disseminated intelligence reports containing a reference to a United States-person identity and the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting;

(C)

with respect to acquisitions authorized under subsection (a), shall review the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and

(D)

shall provide each such review to—

(i)

the Attorney General;

(ii)

the Director of National Intelligence; and

(iii)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(I)

the congressional intelligence committees; and

(II)

the Committees on the Judiciary of the House of Representatives and the Senate.

(3)

Annual review

(A)

Requirement to conduct

The head of each element of the intelligence community conducting an acquisition authorized under subsection (a) shall conduct an annual review to determine whether there is reason to believe that foreign intelligence information has been or will be obtained from the acquisition. The annual review shall provide, with respect to acquisitions authorized under subsection (a)—

(i)

an accounting of the number of disseminated intelligence reports containing a reference to a United States-person identity;

(ii)

an accounting of the number of United States-person identities subsequently disseminated by that element in response to requests for identities that were not referred to by name or title in the original reporting;

(iii)

the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and

(iv)

a description of any procedures developed by the head of such element of the intelligence community and approved by the Director of National Intelligence to assess, in a manner consistent with national security, operational requirements and the privacy interests of United States persons, the extent to which the acquisitions authorized under subsection (a) acquire the communications of United States persons, and the results of any such assessment.

(B)

Use of review

(C)

Provision of review

The head of each element of the intelligence community that conducts an annual review under subparagraph (A) shall provide such review to—

(i)

the Foreign Intelligence Surveillance Court;

(ii)

the Attorney General;

(iii)

the Director of National Intelligence; and

(iv)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(I)

the congressional intelligence committees; and

(II)

the Committees on the Judiciary of the House of Representatives and the Senate.

(4)

Reporting of material breach

(A)

In general

(B)

Definitions

In this paragraph:

(i)

The term “abouts communication” means a communication that contains a reference to, but is not to or from, a target of an acquisition authorized under subsection (a).

(ii)

The term “material breach” means significant noncompliance with applicable law or an order of the Foreign Intelligence Surveillance Court concerning any acquisition of abouts communications.

(Pub. L. 95–511, title VII, § 702, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2438; amended Pub. L. 114–23, title III, § 301, June 2, 2015, 129 Stat. 278; Pub. L. 115–118, title I, §§ 101(a)(1), (b)(1), 103(a), (b)(5), 104, title II, § 205(a)(6), Jan. 19, 2018, 132 Stat. 4, 6, 10, 12, 13, 21.)

cite as: 50 USC 1881a