§ 1881a.
Procedures for targeting certain persons outside the United States other than United States persons
(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); and
(6)
shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
(f)
Queries
(1)
Procedures required
(B)
Record of United States person query terms
(2)
Prohibition on conduct of queries that are solely designed to find and extract evidence of a crime
(A)
Limits on authorizations of United States person queries
(B)
Exceptions
The restriction under subparagraph (A) shall not apply with respect to a query if—
(i)
there is a reasonable belief that such query may retrieve information that could assist in mitigating or eliminating a threat to life or serious bodily harm; or
(ii)
such query is necessary to identify information that must be produced or preserved in connection with a litigation matter or to fulfill discovery obligations in criminal matters under the laws of the United States or any State thereof.
(3)
Restrictions imposed on Federal Bureau of Investigation
(A)
Limits on authorizations of United States person queries
(B)
Notification requirement for certain FBI queries
(ii)
Appropriate congressional leadership defined
In this subparagraph, the term “appropriate congressional leadership” means the following:
(I)
The chairs and ranking minority members of the congressional intelligence committees.
(II)
The Speaker and minority leader of the House of Representatives.
(III)
The majority and minority leaders of the Senate.
(iii)
National security considerations
(iv)
Waiver
(I)
In general
(II)
Termination
(C)
Consent required for FBI to conduct certain queries for purpose of defensive briefing
(i)
Consent required
The Federal Bureau of Investigation may not, for the exclusive purpose of supplementing the contents of a briefing on the defense against a counterintelligence threat to a member of Congress, conduct a query using a query term that is the name or restricted personal information (as such term is defined in
section 119 of title 18) of that member unless—
(I)
the member provides consent to the use of the query term; or
(II)
the Deputy Director of the Federal Bureau of Investigation determines that exigent circumstances exist sufficient to justify the conduct of such query.
(ii)
Notification
(I)
Notification of consent sought
(II)
Notification of exception used
(iii)
Rule of construction
Nothing in this subparagraph may be construed as—
(I)
applying to matters outside of the scope of the briefing on the defense against a counterintelligence threat to be provided or supplemented under clause (i); or
(II)
limiting the lawful investigative activities of the Federal Bureau of Investigation other than supplementing the contents of a briefing on the defense against a counterintelligence threat to a member of Congress.
(iv)
Appropriate congressional leadership defined
In this subparagraph, the term “appropriate congressional leadership” means the following:
(I)
The chairs and ranking minority members of the congressional intelligence committees.
(II)
The Speaker and minority leader of the House of Representatives.
(III)
The majority and minority leaders of the Senate.
(D)
Querying procedures applicable to Federal Bureau of Investigation
For any procedures adopted under paragraph (1) applicable to the Federal Bureau of Investigation, the Attorney General, in consultation with the Director of National Intelligence, shall include the following requirements:
(ii)
Additional prior approvals for sensitive queries
A requirement that, absent exigent circumstances, prior to conducting certain queries, personnel of the Federal Bureau of Investigation receive approval, at minimum, as follows:
(I)
Approval from the Deputy Director of the Federal Bureau of Investigation if the query uses a query term reasonably believed to identify a United States elected official, an appointee of the President or a State governor, a United States political candidate, a United States political organization or a United States person prominent in such organization, or a United States media organization or a United States person who is a member of such organization.
(II)
Approval from an attorney of the Federal Bureau of Investigation if the query uses a query term reasonably believed to identify a United States religious organization or a United States person who is prominent in such organization.
(III)
Approval from an attorney of the Federal Bureau of Investigation if such conduct involves batch job technology (or successor tool).
(iii)
Prior written justification
(iv)
Storage of certain contents and noncontents
Any system of the Federal Bureau of Investigation that stores unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) together with contents or noncontents obtained through other lawful means shall be configured in a manner that—
(I)
requires personnel of the Federal Bureau of Investigation to affirmatively elect to include such unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) when running a query; or
(II)
includes other controls reasonably expected to prevent inadvertent queries of such unminimized contents or noncontents.
(v)
Waiver authority for Foreign Intelligence Surveillance Court
(vi)
Prohibition on political appointees within the process to approve Federal Bureau of Investigation queries
(4)
Minimum accountability standards
The Director of the Federal Bureau of Investigation shall issue minimum accountability standards that set forth escalating consequences for noncompliant querying of United States person terms within the contents of communications that were acquired under this section. Such standards shall include, at minimum, the following:
(A)
Zero tolerance for willful misconduct.
(B)
Escalating consequences for unintentional noncompliance, including the threshold for mandatory revocation of access to query information acquired under this section.
(C)
Consequences for supervisors who oversee users that engage in noncompliant queries.
(5)
Definitions
In this subsection:
(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).
(6)
Vetting of non-United States persons
(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.
(3)
Release from liability
(4)
Challenging of directives
(A)
Authority to challenge
(D)
Procedures for initial review
(E)
Procedures for plenary review
(5)
Enforcement of directives
(C)
Procedures for review
(6)
Appeal
(A)
Appeal to the Court of Review
(B)
Certiorari to the Supreme Court
([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, formerly 103(a), (b)(5), 104, title II, § 205(a)(6), Jan. 19, 2018, [132 Stat. 4], 6, 10, 12, 13, 21, renumbered § 103, [Pub. L. 118–49, § 22(b)(2)(B)], Apr. 20, 2024, [138 Stat. 892]; [Pub. L. 118–49], §§ 2(a), (b), (d)–3, 16(a)(1), 22(a), (b)(1), 24, Apr. 20, 2024, [138 Stat. 862], 863–866, 883, 892, 893.)