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

U.S Code last checked for updates: Nov 22, 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); 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)

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

(i)

In general

(ii)

Exception

(B)

Notification requirement for certain FBI queries

(i)

Requirement

(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:

(i)

Training

(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:

(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

(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 and reviews

(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.

(n)

Restriction on certain information available to Federal Bureau of Investigation

(1)

Restriction

(2)

Exception for exigent circumstances

(3)

Exception for assistance to other agencies

(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), (e), (f), 3, 16(a)(1), 22(a), (b)(1), 24, Apr. 20, 2024, 138 Stat. 862, 863, 865–867, 883, 891–893.)

cite as: 50 USC 1881a

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