§ 1881a. Procedures for targeting certain persons outside the United States other than United States persons

§ 1881a. Procedures for targeting certain persons outside the United States other than United States persons

(a) Authorization Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (j)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

(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.

(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 A determination under this paragraph and for purposes of subsection (a) is a determination by the Attorney General and the Director of National Intelligence that exigent circumstances exist because, without immediate implementation of an authorization under subsection (a), intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order pursuant to subsection (j)(3) prior to the implementation of such authorization.

(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 Nothing in subchapter I shall be construed to require an application for a court order under such subchapter for an acquisition that is targeted in accordance with this section at a person reasonably believed to be located outside the United States.

(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 The procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (j).

(e) Minimization procedures

(1) Requirement to adopt The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 1801(h) of this title or section 1821(4) of this title, as appropriate, for acquisitions authorized under subsection (a).

(2) Judicial review The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (j).

(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 The Attorney General, in consultation with the Director of National Intelligence, shall adopt querying procedures consistent with the requirements of the fourth amendment to the Constitution of the United States for information collected pursuant to an authorization under subsection (a).

(B) Record of United States person query terms The Attorney General, in consultation with the Director of National Intelligence, shall ensure that the procedures adopted under subparagraph (A) include a technical procedure whereby a record is kept of each United States person query term used for a query.

(C) Judicial review The procedures adopted in accordance with subparagraph (A) shall be subject to judicial review pursuant to subsection (j).

(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 The querying procedures adopted pursuant to paragraph (1) for the Federal Bureau of Investigation shall prohibit queries of information acquired under subsection (a) that are solely designed to find and extract evidence of criminal activity.

(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

(i) In general Federal Bureau of Investigation personnel must obtain prior approval from a Federal Bureau of Investigation supervisor (or employee of equivalent or greater rank) or attorney who is authorized to access unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) for any query of such unminimized contents or noncontents made using a United States person query term.

(ii) Exception A United States person query to be conducted by the Federal Bureau of Investigation of unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) using a United States person query term may be conducted without obtaining prior approval as specified in clause (i) only if the person conducting the United States person query has a reasonable belief that conducting the query could assist in mitigating or eliminating a threat to life or serious bodily harm.

(B) Notification requirement for certain FBI queries

(i) Requirement The Director of the Federal Bureau of Investigation shall promptly notify appropriate congressional leadership of any query conducted by the Federal Bureau of Investigation using a query term that is reasonably believed to be the name or other personally identifying information of a member of Congress, and shall also notify the member who is the subject of such query.

(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 In submitting a notification under clause (i), the Director shall give due regard to the protection of classified information, sources and methods, and national security.

(iv) Waiver

(I) In general The Director may waive a notification required under clause (i) if the Director determines such notification would impede an ongoing national security or law enforcement investigation.

(II) Termination A waiver under subclause (I) shall terminate on the date the Director determines the relevant notification would not impede the relevant national security or law enforcement investigation or on the date that such investigation ends, whichever is earlier.

(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 Not later than three business days after submitting a request for consent from a member of Congress under clause (i), the Director of the Federal Bureau of Investigation shall notify the appropriate congressional leadership, regardless of whether the member provided such consent.

(II) Notification of exception used Not later than three business days after the conduct of a query under clause (i) without consent on the basis of the existence of exigent circumstances determined under subclause (II) of such clause, the Director of the Federal Bureau of Investigation shall notify the appropriate congressional leadership.

(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:

(i) Training A requirement that, prior to conducting any query, personnel of the Federal Bureau of Investigation successfully complete training on the querying procedures on an annual basis.

(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 A requirement that, prior to conducting a query using a United States person query term, personnel of the Federal Bureau of Investigation provide a written statement of the specific factual basis to support the reasonable belief that such query meets the standards required by the procedures adopted under paragraph (1). For each United States person query, the Federal Bureau of Investigation shall keep a record of the query term, the date of the conduct of the query, the identifier of the personnel conducting the query, and such written statement.

(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 If the Foreign Intelligence Surveillance Court finds that the procedures adopted under paragraph (1) include measures that are reasonably expected to result in similar compliance outcomes as the measures specified in clauses (i) through (iv) of this subparagraph, the Foreign Intelligence Surveillance Court may waive one or more of the requirements specified in such clauses.

(vi) Prohibition on political appointees within the process to approve Federal Bureau of Investigation queries The procedures shall prohibit any political personnel, such as those classified by the Office of Personnel Management as Presidential Appointment with Senate Confirmation, Presidential Appointment (without Senate Confirmation), Noncareer Senior Executive Service Appointment, or Schedule C Excepted Appointment, from inclusion in the Federal Bureau of Investigation’s prior approval process under clause (ii).

(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:

(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).

(6) Vetting of non-United States persons For any procedures for one or more agencies adopted under paragraph (1)(A), the Attorney General, in consultation with the Director of National Intelligence, shall ensure that the procedures enable the vetting of all non-United States persons who are being processed for travel to the United States using terms that do not qualify as United States person query terms under this chapter.

(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 Subject to subparagraph (B), prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall provide to the Foreign Intelligence Surveillance Court a written certification and any supporting affidavit, under oath and under seal, in accordance with this subsection.

(B) Exception If the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2) and time does not permit the submission of a certification under this subsection prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall submit to the Court a certification for such authorization as soon as practicable but in no event later than 7 days after such determination is made.

(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;