[Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML [DISCUSSION DRAFT] 115TH CONGRESS 1ST SESSION H. R. ll To amend the Foreign Intelligence Surveillance Act of 1978 to clarify and improve the procedures and accountability for authorizing certain acquisitions of foreign intelligence, to extend title VII of such Act, to ensure that the barriers to sharing critical foreign intelligence among the intelligence community that existed before September 11, 2001, are not reimposed, and for other purposes. IN THE HOUSE OF REPRESENTATIVES Ml. llllll introduced the following bill; which was referred to the Committee on llllllllllllll A BILL To amend the Foreign Intelligence Surveillance Act of 1978 to clarify and improve the procedures and accountability for authorizing certain acquisitions of foreign intelligence, to extend title VII of such Act, to ensure that the barriers to sharing critical foreign intelligence among the intelligence community that existed before September 11, 2001, are not reimposed, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 2 1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 2 (a) SHORT TITLE.—This Act may be cited as the 3 ‘‘Uniting and Strengthening American Liberty Act of 4 2017’’ or the ‘‘USA Liberty Act of 2017’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—FOREIGN INTELLIGENCE SURVEILLANCE AND ACCOUNTABILITY Sec. 101. Court orders and protection of incidentally collected United States person communications. Sec. 102. Limitation on collection and improvements to targeting procedures and minimization procedures. Sec. 103. Publication of minimization procedures under section 702. Sec. 104. Appointment of amicus curiae for annual certifications. Sec. 105. Increased accountability on incidentally collected communications. Sec. 106. Semiannual reports on certain queries by Federal Bureau of Investigation. Sec. 107. Additional reporting requirements. Sec. 108. Sense of Congress on purpose of section 702 and respecting foreign nationals. TITLE II—SAFEGUARDS AND OVERSIGHT OF PRIVACY AND CIVIL LIBERTIES Sec. Sec. Sec. Sec. 201. 202. 203. 204. Limitation on retention of certain data. Improvements to Privacy and Civil Liberties Oversight Board. Privacy and civil liberties officers. Whistleblower protections for contractors of the intelligence community. TITLE III—EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND OTHER MATTERS Sec. 301. Extension of title VII of FISA. Sec. 302. Penalties for unauthorized removal and retention of classified documents or material. Sec. 303. Comptroller General study on unauthorized disclosures and the classification system. Sec. 304. Sense of Congress on information sharing among intelligence community to protect national security. Sec. 305. Sense of Congress on combating terrorism. Sec. 306. Technical amendments. Sec. 307. Severability. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 3 3 TITLE I—FOREIGN INTELLIGENCE SURVEILLANCE AND ACCOUNTABILITY 4 SEC. 101. COURT ORDERS AND PROTECTION OF INCIDEN- 5 TALLY COLLECTED UNITED STATES PERSON 6 COMMUNICATIONS. 1 2 7 (a) IN GENERAL.—Section 702 of the Foreign Intel- 8 ligence Surveillance Act of 1978 (50 U.S.C. 1881a) is 9 amended— 10 11 (1) by redesignating subsections (j) through (l) as subsections (k) through (m), respectively; and 12 (2) by inserting after subsection (i) the fol- 13 lowing new subsection (j): 14 ‘‘(j) REQUIREMENTS 15 TION OF 16 17 ACCESS AND DISSEMINA- COLLECTIONS OF COMMUNICATIONS.— ‘‘(1) COURT ORDERS AND OTHER REQUIRE- MENTS.— 18 ‘‘(A) COURT ORDERS TO ACCESS CON- 19 TENTS.—Except 20 (C), in response to a query for evidence of a 21 crime, the contents of queried communications 22 acquired under subsection (a) may be accessed 23 or disseminated only upon— as provided by subparagraph 24 ‘‘(i) an application by the Attorney 25 General to a judge of the Foreign Intel- g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 FOR 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 4 1 ligence Surveillance Court that describes 2 the determination of the Attorney General 3 that— 4 ‘‘(I) there is probable cause to 5 believe that such contents may provide 6 evidence of a crime specified in sec- 7 tion 2516 of title 18, United States 8 Code (including crimes covered by 9 paragraph (2) of such section); 10 ‘‘(II) information 11 accessed or disseminated pursuant to 12 subparagraph (B) is not the sole basis 13 for such probable cause; 14 ‘‘(III) such queried communica- 15 tions are relevant to an authorized in- 16 vestigation or assessment, provided 17 that such investigation or assessment 18 is not conducted solely on the basis of 19 activities 20 amendment to the Constitution of the 21 United States; and protected by the first 22 ‘‘(IV) any use of such queried 23 communications pursuant to section 24 706 will be carried out in accordance 25 with such section; and g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 noncontents 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 5 1 ‘‘(ii) an order of the judge approving 2 such application. 3 ‘‘(B) RELEVANCE 4 PROVAL TO ACCESS NONCONTENTS INFORMA- 5 TION.—Except 6 (C), in response to a query for evidence of a 7 crime, the information of queried communica- 8 tions acquired under subsection (a) relating to 9 the dialing, routing, addressing, signaling, or 10 other similar noncontents information may be 11 accessed or disseminated only upon a deter- 12 mination by the Attorney General that— as provided by subparagraph 13 ‘‘(i) such queried communications are 14 relevant to an authorized investigation or 15 assessment, provided that such investiga- 16 tion or assessment is not conducted solely 17 on the basis of activities protected by the 18 first amendment to the Constitution of the 19 United States; and 20 ‘‘(ii) any use of such queried commu- 21 nications pursuant to section 706 will be 22 carried out in accordance with such sec- 23 tion. 24 ‘‘(C) EXCEPTIONS.—The requirement for 25 an order of a judge pursuant to subparagraph g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 AND SUPERVISORY AP- 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 6 1 (A) and the requirement for a determination by 2 the Attorney General under subparagraph (B), 3 respectively, shall not apply to accessing or dis- 4 seminating queried communications acquired 5 under subsection (a) if one or more of the fol- 6 lowing conditions are met: 7 ‘‘(i) Such query is reasonably designed 8 for the primary purpose of returning for- 9 eign intelligence information. 10 ‘‘(ii) The Attorney General makes the 11 determination described in subparagraph 12 (A)(i) and— 13 ‘‘(I) the person related to the 14 queried term is the subject of an 15 order or emergency authorization that 16 authorizes electronic surveillance or 17 physical search under this Act or title 18 18, United States Code; or 19 ‘‘(II) the Attorney General has a 20 reasonable belief that the life or safety 21 of a person is threatened and such 22 contents are sought for the purpose of 23 assisting that person. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 7 1 ‘‘(iii) Pursuant to paragraph (5), the 2 person related to the queried term consents 3 to such access or dissemination. 4 ‘‘(D) LIMITATION 5 VEILLANCE OF UNITED STATES PERSONS.—If 6 the Attorney General determines that it is nec- 7 essary to conduct electronic surveillance on a 8 known United States person who is related to 9 a term used in a query of communications ac- 10 quired under subsection (a), the Attorney Gen- 11 eral may only conduct such electronic surveil- 12 lance using authority provided under other pro- 13 visions of law. 14 ‘‘(E) SIMULTANEOUS ACCESS OF FBI 15 DATABASES.—The 16 reau of Investigation shall ensure that all avail- 17 able investigative or intelligence databases of 18 the Federal Bureau of Investigation are simul- 19 taneously accessed when the Bureau properly 20 uses an information system of the Bureau to 21 determine whether information exists in such a 22 database. Regardless of any positive result that 23 may be returned pursuant to such access, the 24 requirements of this subsection shall apply. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 ON ELECTRONIC SUR- 13:45 Oct 04, 2017 Jkt 000000 Director of the Federal Bu- (654754 66) PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 8 1 ‘‘(F) DELEGATION.—The Attorney General 2 shall delegate the authority under this para- 3 graph to the fewest number of officials that the 4 Attorney General determines practicable. 5 ‘‘(2) AUTHORIZED 6 collection of communications acquired under sub- 7 section (a) may only be queried for legitimate na- 8 tional security purposes or legitimate law enforce- 9 ment purposes. 10 ‘‘(3) RETENTION OF AUDITABLE RECORDS.— 11 The Attorney General and each Director concerned 12 shall retain records of queries that return a positive 13 result from a collection of communications acquired 14 under subsection (a). Such records shall— 15 ‘‘(A) include such queries for not less than 16 5 years after the date on which the query is 17 made; and 18 ‘‘(B) be maintained in a manner that is 19 auditable and available for congressional over- 20 sight. 21 ‘‘(4) COMPLIANCE AND MAINTENANCE.—The 22 requirements of this subsection do not apply with re- 23 spect to queries made for the purpose of— g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 PURPOSES FOR QUERIES.—A 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 9 1 ‘‘(A) submitting to Congress information 2 required by this Act or otherwise ensuring com- 3 pliance with the requirements of this section; or 4 ‘‘(B) performing maintenance or testing of 5 information systems. 6 ‘‘(5) CONSENT.—The requirements of this sub- 7 section do not apply with respect to— 8 ‘‘(A) queries made using a term relating to 9 a person who consents to such queries; or 10 ‘‘(B) the accessing or the dissemination of 11 the contents of queried communications of a 12 person who consents to such access or dissemi- 13 nation. 14 ‘‘(6) DIRECTOR this sub- 15 section, the term ‘Director concerned’ means the fol- 16 lowing: 17 ‘‘(A) The Director of the National Security 18 Agency, with respect to matters concerning the 19 National Security Agency. 20 ‘‘(B) The Director of the Federal Bureau 21 of Investigation, with respect to matters con- 22 cerning the Federal Bureau of Investigation. 23 ‘‘(C) The Director of the Central Intel- 24 ligence Agency, with respect to matters con- 25 cerning the Central Intelligence Agency. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 CONCERNED.—In 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 10 1 ‘‘(D) The Director of the National 2 Counterterrorism Center, with respect to mat- 3 ters concerning the National Counterterrorism 4 Center.’’. 5 (b) PROCEDURES.—Subsection (e) of such section 6 (50 U.S.C. 1881a(e)) is amended by adding at the end 7 the following new paragraph: 8 ‘‘(3) CERTAIN PROCEDURES FOR QUERYING.— 9 The minimization procedures adopted in accordance 10 with paragraph (1) shall describe a query reasonably 11 designed for the primary purpose of returning for- 12 eign intelligence information pursuant to subsection 13 (j)(1)(C)(i).’’. 14 (c) CONFORMING AMENDMENT.—Subsection 15 (g)(2)(B) of such section (50 U.S.C. 1881a(g)(2)(B)) is 16 amended by striking ‘‘and (e)’’ and inserting ‘‘(e), and 17 (j)’’. 18 SEC. 102. LIMITATION ON COLLECTION AND IMPROVE- 19 MENTS TO TARGETING PROCEDURES AND 20 MINIMIZATION PROCEDURES. 21 22 (a) TARGETING PROCEDURES; LIMITATION LECTION.—Subsection ON COL- (d) of section 702 of the Foreign 23 Intelligence Surveillance Act of 1978 (50 U.S.C. 24 1881a(d)) is amended— g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 11 1 (1) in paragraph (1), by striking ‘‘The Attorney 2 General’’ and inserting ‘‘In accordance with para- 3 graphs (3) and (4), the Attorney General’’; and 4 5 (2) by adding at the end the following new paragraphs: 6 ‘‘(3) DUE procedures adopted 7 in accordance with paragraph (1) shall require due 8 diligence in determining whether a person targeted 9 is a non-United States person reasonably believed to 10 be located outside the United States by— 11 ‘‘(A) making the determination based on 12 the totality of the circumstances, including by, 13 to the extent practicable, ensuring that any con- 14 flicting information regarding whether the per- 15 son is reasonably believed to be located outside 16 the United States or is a United States person 17 is resolved before making such determination; 18 ‘‘(B) documenting the processes under sub- 19 paragraph (A); and 20 ‘‘(C) documenting the rationale for why 21 targeting such person will result in the acquisi- 22 tion of foreign intelligence information author- 23 ized by subsection (a). 24 ‘‘(4) LIMITATION.—During the period pre- 25 ceding September 30, 2023, the procedures adopted g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 DILIGENCE.—The 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 12 1 in accordance with paragraph (1) shall require that 2 the targeting of a person is limited to communica- 3 tions to or from the targeted person.’’. 4 (b) MINIMIZATION PROCEDURES.—Subsection (e) of 5 such section (50 U.S.C. 1881a(e)), as amended by section 6 101, is further amended— 7 (1) in paragraph (1), by inserting ‘‘, and the re- 8 quirements of this subsection’’ before the period at 9 the end; and 10 11 (2) by adding at the end the following new paragraph: 12 ‘‘(4) REQUESTS 13 The procedures adopted under paragraph (1) shall 14 include specific procedures adopted by the Attorney 15 General for elements of the Federal Government to 16 submit requests to unmask information in dissemi- 17 nated intelligence reports. Such specific procedures 18 shall— 19 ‘‘(A) require that an individual who is 20 making the request documents the rationale 21 that such request is for legitimate reasons au- 22 thorized pursuant to paragraph (1); and 23 ‘‘(B) require the requesting element of the 24 Federal Government to retain records of each 25 request, including— g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 TO UNMASK INFORMATION.— 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 13 1 ‘‘(i) a copy of the request; 2 ‘‘(ii) the name and position of the in- 3 dividual who is making the request; and 4 ‘‘(iii) if the request is approved, the 5 name and position of the individual who 6 approved the request and the date of the 7 approval.’’. 8 (c) UNMASK DEFINED.—Section 701(b) of such Act 9 (50 U.S.C. 1881(b)) is amended by adding at the end the 10 following new paragraph: 11 ‘‘(6) UNMASK.—The term ‘unmask’ means, 12 with respect to a disseminated intelligence report 13 containing a reference to a United States person 14 that does not identify that person (including by 15 name or title), to disseminate the identity of the 16 United States person, including the name or title of 17 the person.’’. 18 (d) 19 RECORDS CONSISTENT ON REQUESTS REQUIREMENTS TO TO RETAIN UNMASK INFORMATION.— 20 The Foreign Intelligence Surveillance Act of 1978 (50 21 U.S.C. 1801 et seq.) is amended as follows: 22 (1) In section 101(h) (50 U.S.C. 1801(h))— 23 (A) in paragraph (3), by striking ‘‘; and’’ 24 and inserting a semicolon; g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 14 1 (B) in paragraph (4), by striking the pe- 2 riod at the end and inserting ‘‘; and’’; and 3 (C) by adding at the end the following new 4 paragraph: 5 ‘‘(5) specific procedures as described in section 6 702(e)(4).’’. 7 (2) In section 301(4) (50 U.S.C. 1821(4))— 8 (A) in subparagraph (C), by striking ‘‘; 9 and’’ and inserting a semicolon; 10 (B) in subparagraph (D), by striking the 11 period at the end and inserting ‘‘; and’’; and 12 (C) by adding at the end the following new 13 subparagraph: 14 ‘‘(E) specific procedures as described in 15 section 702(e)(4).’’. 16 (3) In section 402(h) (50 U.S.C. 1842(h))— 17 (A) by redesignating paragraph (2) as 18 paragraph (3); and 19 (B) by inserting after paragraph (1) the 20 following new paragraph (2): 21 ‘‘(2) REQUESTS FOR NONPUBLICLY AVAILABLE 22 INFORMATION.—The policies and procedures adopt- 23 ed under paragraph (1) shall include specific proce- 24 dures as described in section 702(e)(4).’’. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 15 1 2 (4) section 501(g)(2) (50 U.S.C. 1861(g)(2))— 3 (A) in subparagraph (B), by striking ‘‘; 4 and’’ and inserting a semicolon; 5 (B) in subparagraph (C), by striking the 6 period at the end and inserting ‘‘; and’’; and 7 (C) by adding at the end the following new 8 subparagraph: 9 ‘‘(D) specific procedures as described in 10 11 In section 702(e)(4).’’. (e) REPORT ON UNMASKING.—Not later than 90 12 days after the date of the enactment of this Act, the Direc13 tor of National Intelligence shall submit to the Permanent 14 Select Committee on Intelligence of the House of Rep15 resentatives, the Select Committee on Intelligence of the 16 Senate, and the Committees on the Judiciary of the House 17 of Representatives and the Senate a report on the progress 18 made by the Director with respect to— 19 (1) ensuring that incidentally collected commu- 20 nications of United States persons are properly 21 masked if masking is necessary; and 22 (2) implementing procedures for requests to 23 unmask information under section 702(e)(4) of such 24 Act (50 U.S.C. 1881a(e)(4)), as added by subsection 25 (c). g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 16 1 SEC. 103. PUBLICATION OF MINIMIZATION PROCEDURES 2 3 UNDER SECTION 702. Subsection (e) of section 702 of the Foreign Intel- 4 ligence Surveillance Act of 1978 (50 U.S.C. 1881a(e)), as 5 amended by sections 101 and 102, is further amended by 6 adding at the end the following new paragraph: 7 ‘‘(5) PUBLICATION.—The Director of National 8 Intelligence, in consultation with the Attorney Gen- 9 eral, shall— 10 ‘‘(A) conduct a declassification review of 11 any minimization procedures adopted or amend- 12 ed in accordance with paragraph (1); and 13 ‘‘(B) consistent with such review, make 14 such minimization procedures publicly available 15 to the greatest extent practicable, which may be 16 in redacted form.’’. 17 SEC. 104. APPOINTMENT OF AMICUS CURIAE FOR ANNUAL 18 19 CERTIFICATIONS. Section 103(i) of the Foreign Intelligence Surveil- 20 lance Act of 1978 (50 U.S.C. 1803(i)(2)) is amended— 21 (1) in paragraph (2)— 22 (A) in subparagraph (A), by striking ‘‘; 23 and’’ and inserting a semicolon; 24 (B) by redesignating subparagraph (B) as 25 subparagraph (C); and g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 17 1 (C) by inserting after subparagraph (A) 2 the following new subparagraph (B): 3 ‘‘(B) shall appoint an individual who has 4 been designated under paragraph (1) to serve 5 as amicus curiae to assist such court in the re- 6 view of a certification under section 702(i), un- 7 less the court issues a finding that such ap- 8 pointment is not appropriate; and’’; and 9 (2) in paragraphs (4) and (5), by striking 10 ‘‘paragraph (2)(A)’’ both places it appears and in- 11 serting ‘‘subparagraph (A) or (B) of paragraph (2)’’. 12 SEC. 105. INCREASED ACCOUNTABILITY ON INCIDENTALLY 13 COLLECTED COMMUNICATIONS. 14 Section 707 of such Act (50 U.S.C. 1881f) is amend- 15 ed by adding at the end the following new subsection: 16 17 ‘‘(c) INCIDENTALLY COLLECTED COMMUNICATIONS AND OTHER INFORMATION.—Together with the semi- 18 annual report submitted under subsection (a), the Direc19 tor of National Intelligence shall submit to the congres20 sional committees specified in such subsection a report on 21 incidentally collected communications and other informa22 tion regarding United States persons under section 702. 23 Each such report shall include, with respect to the 624 month period covered by the report, the following: g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 18 1 ‘‘(1) Except as provided by paragraph (2), the 2 number, or a good faith estimate, of communications 3 acquired under subsection (a) of such section of 4 known United States persons that the National Se- 5 curity Agency positively identifies as such in the or- 6 dinary course of its business, including a description 7 of any efforts of the intelligence community to ascer- 8 tain such number or good faith estimate. 9 ‘‘(2) If the Director determines that calculating 10 the number, or a good faith estimate, under para- 11 graph (1) is not achievable, a detailed explanation 12 for why such calculation is not achievable. 13 ‘‘(3) The number of— 14 ‘‘(A) United States persons whose informa- 15 tion is unmasked pursuant to subsection (e)(4) 16 of such section; 17 ‘‘(B) requests made by an element of the 18 Federal Government, listed by each such ele- 19 ment, to unmask information pursuant to such 20 subsection; and 21 ‘‘(C) requests that resulted in the dissemi- 22 nation of names, titles, or other identifiers po- 23 tentially associated with individuals pursuant to 24 such subsection, including the element of the in- g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML G:\CMTE\JD\15\FISA\FAA17_001.XML [Discussion Draft] 19 1 telligence community and position of the indi- 2 vidual making the request. 3 ‘‘(4) The number of disseminations of commu- 4 nications acquired under subsection (a) of section 5 702 to the Federal Bureau of Investigation for cases 6 not pertaining to national security or foreign intel- 7 ligence. 8 ‘‘(5) The number of instances in which evidence 9 of a crime not pertaining to national security or for- 10 eign intelligence that was identified in communica- 11 tions acquired under subsection (a) of section 702 12 was disseminated from the national security branch 13 of the Bureau to the criminal investigative division 14 of the Bureau (or from such successor branch to 15 such successor division).’’. 16 SEC. 106. SEMIANNUAL REPORTS ON CERTAIN QUERIES BY 17 18 FEDERAL BUREAU OF INVESTIGATION. Section 707 of such Act (50 U.S.C. 1881f), as 19 amended by section 105, is further amended by adding 20 at the end the following new subsection: 21 ‘‘(d) SEMIANNUAL FBI REPORTS.—Together with 22 the semiannual report submitted under subsection (a), the 23 Director of the Federal Bureau of Investigation shall sub24 mit to the congressional committees specified in such sub25 section, and make publicly available, a report containing, g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML G:\CMTE\JD\15\FISA\FAA17_001.XML [Discussion Draft] 20 1 with respect to the period covered by the report, the num2 ber of queries made by the Federal Bureau of Investiga3 tion described in subsection (j)(1) of section 702 that re4 sulted in communications being accessed or disseminated 5 pursuant to such subsection.’’. 6 7 SEC. 107. ADDITIONAL REPORTING REQUIREMENTS. (a) ELECTRONIC SURVEILLANCE.—Section 107 of 8 such Act (50 U.S.C. 1807) is amended to read as follows: 9 10 ‘‘SEC. 107. REPORT OF ELECTRONIC SURVEILLANCE. ‘‘(a) ANNUAL REPORT.—In April of each year, the 11 Attorney General shall transmit to the Administrative Of12 fice of the United States Courts and to Congress a report 13 setting forth with respect to the preceding calendar year— 14 ‘‘(1) the total number of applications made for 15 orders and extensions of orders approving electronic 16 surveillance under this title; 17 18 ‘‘(2) the total number of such orders and extensions either granted, modified, or denied; and 19 ‘‘(3) the total number of persons who were sub- 20 ject to electronic surveillance conducted under an 21 order or emergency authorization under this title, 22 rounded to the nearest 500, including the number of 23 such individuals who are United States persons, re- 24 ported to the nearest band of 500, starting with 0– 25 499. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 21 1 ‘‘(b) FORM.—Each report under subsection (a) shall 2 be submitted in unclassified form. Not later than 7 days 3 after the date on which the Attorney General submits each 4 such report, the Attorney General shall make the report 5 publicly available.’’. 6 7 (b) PEN REGISTERS VICES.—Section AND TRAP AND TRACE DE- 406 of such Act (50 U.S.C. 1846) is 8 amended— 9 (1) in subsection (b)— 10 (A) in paragraph (4), by striking ‘‘; and’’ 11 and inserting a semicolon; 12 (B) in paragraph (5), by striking the pe- 13 riod at the end and inserting ‘‘; and’’; and 14 (C) by adding at the end the following new 15 paragraph: 16 ‘‘(6) a good faith estimate of the total number 17 of persons who were targeted by the installation and 18 use of a pen register or trap and trace device under 19 an order or emergency authorization issued under 20 this title, rounded to the nearest 500, including— 21 ‘‘(A) the number of such persons who are 22 United States persons, reported to the nearest 23 band of 500, starting with 0–499; and 24 ‘‘(B) of the number of United States per- 25 sons described in subparagraph (A), the num- g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML G:\CMTE\JD\15\FISA\FAA17_001.XML [Discussion Draft] 22 1 ber of persons whose information acquired pur- 2 suant to such order was reviewed or accessed by 3 a Federal officer, employee, or agent, reported 4 to the nearest band of 500, starting with 0– 5 499.’’; and 6 (2) by adding at the end the following new sub- 7 section: 8 ‘‘(c) Each report under subsection (b) shall be sub- 9 mitted in unclassified form. Not later than 7 days after 10 the date on which the Attorney General submits such a 11 report, the Attorney General shall make such report pub12 licly available.’’. 13 SEC. 108. SENSE OF CONGRESS ON PURPOSE OF SECTION 14 15 702 AND RESPECTING FOREIGN NATIONALS. It is the sense of Congress that— 16 (1) the acquisition of communications by the 17 National Security Agency under section 702 of the 18 Foreign Intelligence Surveillance Act (50 U.S.C. 19 1881a) should respect the norms of international 20 comity by avoiding, both in actuality and appear- 21 ance, targeting of foreign individuals based on un- 22 founded discrimination or for the purpose of afford- 23 ing a commercial competitive advantage to compa- 24 nies and business sectors of the United States; and g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 23 1 (2) the collection of intelligence under such sec- 2 tion 702 is meant to shield the United States, and 3 by extension, the allies of the United States, from 4 foreign security threats. 7 TITLE II—SAFEGUARDS AND OVERSIGHT OF PRIVACY AND CIVIL LIBERTIES 8 SEC. 201. LIMITATION ON RETENTION OF CERTAIN DATA. 5 6 9 (a) REQUIRED PURGING.—Subsection (e) of section 10 702 of the of the Foreign Intelligence Surveillance Act of 11 1978 (50 U.S.C. 1881a(e)), as amended by title I, is fur12 ther amended by adding at the end the following new para13 graph: 14 ‘‘(6) LIMITATION 15 ‘‘(A) PERIOD OF RETENTION AND RE- 16 QUIREMENT 17 section 309 of the Intelligence Authorization 18 Act for Fiscal Year 2015 (50 U.S.C. 1813), ex- 19 cept as provided by subparagraph (B), the pro- 20 cedures adopted under paragraph (1) shall en- 21 sure that any communications that do not con- 22 tain foreign intelligence information are purged 23 by not later than 90 days after the date on 24 which the communications are determined to 25 not contain foreign intelligence information. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 ON RETENTION.— 13:45 Oct 04, 2017 Jkt 000000 FOR PURGING.—Notwithstanding (654754 66) PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 24 1 ‘‘(B) WAIVER.—The Director of the Na- 2 tional Security Agency may waive the require- 3 ments of subparagraph (A), on an individual- 4 ized and specific basis, if the Director deter- 5 mines that such waiver is necessary to protect 6 the national security of the United States.’’. 7 (b) SEMIANNUAL ASSESSMENT.—Subsection (m) of 8 such section, as redesignated by section 101, is amend9 ed— 10 11 (1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4); and 12 13 (2) by inserting after paragraph (1) the following new paragraph (2): 14 ‘‘(2) MATTERS 15 SESSMENT TO FISC AND CONGRESS.—Each 16 annual assessment under paragraph (1) shall in- 17 clude, with respect to the 6-month period covered by 18 the assessment, the following: semi- 19 ‘‘(A) An affidavit by the Director of the 20 National Security Agency, without delegation, 21 that communications described in subsection 22 (e)(6)(A) were purged pursuant to such sub- 23 section. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 INCLUDED IN SEMIANNUAL AS- 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 25 1 ‘‘(B) The number of waivers made under 2 subsection (e)(6)(B), including a description of 3 the purpose for each such waiver.’’. 4 SEC. 202. IMPROVEMENTS TO PRIVACY AND CIVIL LIB- 5 6 ERTIES OVERSIGHT BOARD. (a) APPOINTMENT OF STAFF.—Subsection (j) of sec- 7 tion 1061 of the Intelligence Reform and Terrorism Pre8 vention Act of 2004 (42 U.S.C. 2000ee(j)) is amended— 9 10 (1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and 11 12 (2) by inserting after paragraph (1) the following new paragraph: 13 ‘‘(2) APPOINTMENT IN ABSENCE OF CHAIR- 14 MAN.—If 15 vacant, during the period of the vacancy, the Board, 16 at the direction of the unanimous vote of the serving 17 members of the Board, may exercise the authority of 18 the chairman under paragraph (1).’’. 19 (b) MEETINGS.—Subsection (f) of such section (42 the position of chairman of the Board is 20 U.S.C. 2000ee(f)) is amended— 21 22 (1) by striking ‘‘The Board shall’’ and inserting ‘‘The Board’’; 23 24 (2) in paragraph (1) by striking ‘‘make its’’ and inserting ‘‘shall make its’’; and 25 (3) in paragraph (2)— g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 26 1 (A) by striking ‘‘hold public’’ and inserting 2 ‘‘shall hold public’’; and 3 (B) by inserting before the period at the 4 end the following: ‘‘, but may, notwithstanding 5 section 552b of title 5, United States Code, 6 meet or otherwise communicate in any number 7 to confer or deliberate in a manner that is 8 closed to the public’’. 9 (c) REPORT ON SECTION 702 AND TERRORISM.—Not 10 later than 1 year after the date on which the Privacy and 11 Civil Liberties Oversight Board first achieves a quorum 12 following the date of the enactment of this Act, the Board 13 shall submit to the Committee on the Judiciary and the 14 Permanent Select Committee on Intelligence of the House 15 of Representatives and the Committee on the Judiciary 16 and the Select Committee on Intelligence of the Senate 17 a report assessing— 18 (1) how communications acquired under section 19 702 of the of the Foreign Intelligence Surveillance 20 Act of 1978 (50 U.S.C. 1881a) are used by the 21 United States to prevent or defend against ter- 22 rorism; 23 (2) how technological challenges and changes in 24 technology affect such prevention and defense; and g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 27 1 (3) how privacy and civil liberties are affected 2 by the actions identified under paragraph (1) and 3 the changes in technology identified under para- 4 graph (2). 5 6 SEC. 203. PRIVACY AND CIVIL LIBERTIES OFFICERS. (a) CODIFICATION OF CERTAIN OFFICERS.—Section 7 1062(a) of the Intelligence Reform and Terrorism Preven8 tion Act of 2004 (42 U.S.C. 2000ee–1(a)) is amended by 9 inserting ‘‘, the Director of the National Security Agency, 10 the Director of the Federal Bureau of Investigation’’ after 11 ‘‘the Director of the Central Intelligence Agency’’. 12 13 (b) ANNUAL REPORTS TIONS OF ON INCIDENTAL COMMUNICA- KNOWN UNITED STATES PERSONS.—Para- 14 graph (4)(A) of subsection (m) of section 702 of the For15 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 16 1881a), as redesignated by sections 101 and 201, is 17 amended— 18 19 (1) in clause (iii), by striking ‘‘; and’’ and inserting a semicolon; 20 21 (2) in clause (iv), by striking the period at the end and inserting ‘‘; and’’; and 22 23 (3) by adding at the end the following new clause: 24 ‘‘(v) a review by the privacy and civil 25 liberties officer of the element of inciden- g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 28 1 tally collected communications of known 2 United States persons.’’. 3 SEC. 204. WHISTLEBLOWER PROTECTIONS FOR CONTRAC- 4 5 6 TORS OF THE INTELLIGENCE COMMUNITY. (a) PROHIBITED PERSONNEL PRACTICES TELLIGENCE IN THE IN- COMMUNITY.—Section 1104 of the National 7 Security Act of 1947 (50 U.S.C. 3234) is amended— 8 9 (1) in subsection (a), by adding at the end the following new paragraph: 10 ‘‘(4) CONTRACTOR EMPLOYEE.—The term ‘con- 11 tractor employee’ means an employee of a con- 12 tractor, subcontractor, grantee, subgrantee, or per- 13 sonal services contractor, of a covered intelligence 14 community element.’’; 15 16 (2) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; 17 (3) by inserting after subsection (b) the fol- 18 lowing new subsection (c): 19 ‘‘(c) CONTRACTOR EMPLOYEES.—(1) Any employee 20 of an agency who has authority to take, direct others to 21 take, recommend, or approve any personnel action, shall 22 not, with respect to such authority, take or fail to take 23 a personnel action with respect to any contractor employee 24 as a reprisal for a lawful disclosure of information by the 25 contractor employee to the Director of National Intel- g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 29 1 ligence (or an employee designated by the Director of Na2 tional Intelligence for such purpose), the Inspector Gen3 eral of the Intelligence Community, the head of the con4 tracting agency (or an employee designated by the head 5 of that agency for such purpose), the appropriate inspec6 tor general of the contracting agency, a congressional in7 telligence committee, or a member of a congressional intel8 ligence committee, which the contractor employee reason9 ably believes evidences— 10 ‘‘(A) a violation of any Federal law, rule, 11 or regulation (including with respect to evidence 12 of another employee or contractor employee ac- 13 cessing or sharing classified information with- 14 out authorization); or 15 ‘‘(B) mismanagement, a gross waste of 16 funds, an abuse of authority, or a substantial 17 and specific danger to public health or safety. 18 ‘‘(2) A personnel action under paragraph (1) is pro- 19 hibited even if the action is undertaken at the request of 20 an agency official, unless the request takes the form of 21 a nondiscretionary directive and is within the authority of 22 the agency official making the request.’’; 23 24 (4) in subsection (b), by striking the heading and inserting ‘‘AGENCY EMPLOYEES.—’’; and g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 30 1 (5) in subsection (e), as redesignated by para- 2 graph (2), by inserting ‘‘contractor employee,’’ after 3 ‘‘any employee,’’. 4 (b) FEDERAL BUREAU OF INVESTIGATION.— 5 (1) IN GENERAL.—Any 6 Bureau of Investigation who has authority to take, 7 direct others to take, recommend, or approve any 8 personnel action, shall not, with respect to such au- 9 thority, take or fail to take a personnel action with 10 respect to a contractor employee as a reprisal for a 11 disclosure of information— 12 (A) made— 13 (i) to a supervisor in the direct chain 14 of command of the contractor employee, up 15 to and including the Director of the Fed- 16 eral Bureau of Investigation; 17 (ii) to the Inspector General; 18 (iii) to the Office of Professional Re- 19 sponsibility of the Department of Justice; 20 (iv) to the Office of Professional Re- 21 sponsibility of the Federal Bureau of In- 22 vestigation; 23 (v) to the Inspection Division of the 24 Federal Bureau of Investigation; g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 employee of the Federal 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 31 1 (vi) as described in section 7211 of 2 title 5, United States Code; 3 (vii) to the Office of Special Counsel; 4 or 5 (viii) to an employee designated by 6 any officer, employee, office, or division de- 7 scribed in clauses (i) through (vii) for the 8 purpose of receiving such disclosures; and 9 (B) which the contractor employee reason- 10 ably believes evidences— 11 (i) any violation of any law, rule, or 12 regulation (including with respect to evi- 13 dence of another employee or contractor 14 employee accessing or sharing classified in- 15 formation without authorization); or 16 (ii) gross mismanagement, a gross 17 waste of funds, an abuse of authority, or 18 a substantial and specific danger to public 19 health or safety. 20 (2) ACTIONS personnel action 21 under paragraph (1) is prohibited even if the action 22 is undertaken at the request of an official of the Bu- 23 reau, unless the request takes the form of a nondis- 24 cretionary directive and is within the authority of 25 the official making the request. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 BY REQUEST.—A 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 32 1 (3) REGULATIONS.—The Attorney General shall 2 prescribe regulations to ensure that a personnel ac- 3 tion described in paragraph (1) shall not be taken 4 against a contractor employee of the Bureau as a re- 5 prisal for any disclosure of information described in 6 subparagraph (A) of such paragraph. 7 (4) ENFORCEMENT.—The President shall pro- 8 vide for the enforcement of this subsection in a man- 9 ner consistent with applicable provisions of sections 10 1214 and 1221 of title 5, United States Code. 11 (5) DEFINITIONS.—In this subsection: 12 (A) The term ‘‘contractor employee’’ 13 means an employee of a contractor, subcon- 14 tractor, grantee, subgrantee, or personal serv- 15 ices contractor, of the Federal Bureau of Inves- 16 tigation. 17 (B) The term ‘‘personnel action’’ means 18 any action described in clauses (i) through (x) 19 of section 2302(a)(2)(A) of title 5, United 20 States Code, with respect to a contractor em- 21 ployee. 22 (c) RETALIATORY 23 CLEARANCES AND REVOCATION OF SECURITY ACCESS DETERMINATIONS.—Section 24 3001(j) of the Intelligence Reform and Terrorism Preven- g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 33 1 tion Act of 2004 (50 U.S.C. 3341(j)) is amended by add2 ing at the end the following new paragraph: 3 ‘‘(8) INCLUSION OF CONTRACTOR EMPLOY- 4 EES.—In 5 cludes an employee of a contractor, subcontractor, 6 grantee, subgrantee, or personal services contractor, 7 of an agency. With respect to such employees, the 8 term ‘employing agency’ shall be deemed to be the 9 contracting agency.’’. this subsection, the term ‘employee’ in- 13 TITLE III—EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND OTHER MATTERS 14 SEC. 301. EXTENSION OF TITLE VII OF FISA. 10 11 12 15 (a) EXTENSION.—Section 403(b) of the FISA 16 Amendments Act of 2008 (Public Law 110–261; 122 Stat. 17 2474) is amended— 18 (1) in paragraph (1)— 19 (A) by striking ‘‘December 31, 2017’’ and 20 inserting ‘‘September 30, 2023’’; and 21 (B) by inserting ‘‘and by the USA Liberty 22 Act of 2017’’ after ‘‘section 101(a)’’; and 23 (2) in paragraph (2) in the matter preceding 24 subparagraph (A), by striking ‘‘December 31, 2017’’ 25 and inserting ‘‘September 30, 2023’’. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 34 1 (b) CONFORMING AMENDMENTS.—Section 404(b) of 2 the FISA Amendments Act of 2008 (Public Law 110–261; 3 122 Stat. 2476) is amended— 4 (1) in paragraph (1)— 5 (A) in the heading, by striking ‘‘DECEM- 6 BER 31, 2017’’ 7 2023’’; 8 and inserting ‘‘SEPTEMBER 30, and (B) by inserting ‘‘and by the USA Liberty 9 Act of 2017’’ after ‘‘section 101(a)’’; 10 (2) in paragraph (2), by inserting ‘‘and by the 11 USA Liberty Act of 2017’’ after ‘‘section 101(a)’’; 12 and 13 (3) in paragraph (4)— 14 (A) by striking ‘‘702(l)’’ each place it ap- 15 pears and inserting ‘‘702(m)’’; 16 (B) by inserting ‘‘and amended by the 17 USA Liberty Act of 2017’’ after ‘‘as added by 18 section 101(a)’’ both places it appears; and 19 (C) by inserting ‘‘and by the USA Liberty 20 Act of 2017’’ after ‘‘as amended by section 21 101(a)’’ both places it appears. 22 23 (c) EFFECTIVE DATE AND OF AMENDMENTS TO FISA FAA.—The amendments made to the FISA Amend- 24 ments Act of 2008 (Public Law 110–261) by subsections 25 (a) and (b) and to the Foreign Intelligence Surveillance g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML G:\CMTE\JD\15\FISA\FAA17_001.XML [Discussion Draft] 35 1 Act of 1978 (50 U.S.C. 1801 et seq.) by titles I and II 2 shall take effect on the earlier of the date of the enactment 3 of this Act or December 31, 2017. 4 SEC. 302. PENALTIES FOR UNAUTHORIZED REMOVAL AND 5 RETENTION OF CLASSIFIED DOCUMENTS OR 6 MATERIAL. 7 Section 1924 of title 18, United States Code, is 8 amended— 9 10 (1) in subsection (a), by striking ‘‘one year’’ and inserting ‘‘five years’’; 11 12 (2) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and 13 (3) by inserting after subsection (a) the fol- 14 lowing new subsection (b): 15 ‘‘(b) Whoever, being an officer, employee, contractor, 16 or consultant of the United States, and, by virtue of his 17 office, employment, position, or contract, becomes pos18 sessed of documents or materials containing classified in19 formation of the United States, negligently removes such 20 documents or materials without authority and knowingly 21 retains such documents or materials at an unauthorized 22 location shall be fined under this title or imprisoned for 23 not more than one year, or both.’’. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 36 1 SEC. 303. COMPTROLLER GENERAL STUDY ON UNAUTHOR- 2 IZED DISCLOSURES AND THE CLASSIFICA- 3 TION SYSTEM. 4 (a) STUDY.—The Comptroller General of the United 5 States shall conduct a study of the unauthorized disclosure 6 of classified information and the classification system of 7 the United States. 8 (b) MATTERS INCLUDED.—The study under sub- 9 section (a) shall address the following: 10 11 (1) Insider threat risks to the unauthorized disclosure of classified information. 12 (2) The effect of modern technology on the un- 13 authorized disclosure of classified information, in- 14 cluding with respect to— 15 (A) using cloud storage for classified infor- 16 mation; and 17 (B) any technological means to prevent or 18 detect such unauthorized disclosure. 19 (3) The effect of overclassification on the unau- 20 thorized disclosure of classified information. 21 (4) Any ways to improve the classification sys- 22 tem of the United States, including with respect to 23 changing the levels of classification used in such sys- 24 tem. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 37 1 (5) How to improve the authorized sharing of 2 classified information, including with respect to sen- 3 sitive compartmented information. 4 5 (6) The value of polygraph tests in determining who is authorized to access classified information. 6 (7) Whether each element of the intelligence 7 community (as defined in section 3(4) of the Na- 8 tional Security Act of 1947 (50 U.S.C. 3003(4))— 9 (A) applies uniform standards in deter- 10 mining who is authorized to access classified in- 11 formation; and 12 (B) provides proper training with respect 13 14 to the handling of classified information. (c) COOPERATION.—The heads of the intelligence 15 community shall provide to the Comptroller General infor16 mation the Comptroller General determines necessary to 17 carry out the study under subsection (a). 18 (d) REPORT.—Not later than 180 days after the date 19 of the enactment of this Act, the Comptroller General shall 20 submit to the Committee on the Judiciary and the Perma21 nent Select Committee on Intelligence of the House of 22 Representatives and the Committee on the Judiciary and 23 the Select Committee on Intelligence of the Senate a re24 port containing the study under subsection (a). g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML G:\CMTE\JD\15\FISA\FAA17_001.XML [Discussion Draft] 38 1 (e) FORM.—The report under subsection (d) shall be 2 submitted in unclassified form, but may include a classi3 fied annex. 4 SEC. 304. SENSE OF CONGRESS ON INFORMATION SHARING 5 AMONG INTELLIGENCE COMMUNITY TO PRO- 6 TECT NATIONAL SECURITY. 7 It is the sense of Congress that, in carrying out sec- 8 tion 702 of the Foreign Intelligence Surveillance Act of 9 1978 (50 U.S.C. 1881a), as amended by this Act, the 10 United States Government should ensure that the bar11 riers, whether real or perceived, to sharing critical foreign 12 intelligence among the intelligence community that existed 13 before September 11, 2001, are not reimposed by sharing 14 information vital to national security among the intel15 ligence community in a manner that is consistent with 16 such section, applicable provisions of law, and the Con17 stitution of the United States. 18 SEC. 305. SENSE OF CONGRESS ON COMBATING TER- 19 20 RORISM. It is the sense of Congress that, consistent with the 21 protection of sources and methods, the President should 22 share information learned by acquiring communications 23 under section 702 of the Foreign Intelligence Surveillance 24 Act (50 U.S.C. 1881a) with allies of the United States 25 to prevent and defend against terrorism. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML [Discussion Draft] G:\CMTE\JD\15\FISA\FAA17_001.XML 39 1 2 SEC. 306. TECHNICAL AMENDMENTS. The Foreign Intelligence Surveillance Act of 1978 3 (50 U.S.C. 1801 et seq.) is amended as follows: 4 (1) In section 302(a)(1)(A)(iii) (50 U.S.C. 5 1822(a)(1)(A)(iii)), by striking ‘‘paragraphs (1) 6 through (4)’’ and inserting ‘‘subparagraphs (A) 7 through (D)’’. 8 (2) In section 406(b) (50 U.S.C. 1846(b)), by 9 striking ‘‘and to the Committees on the Judiciary of 10 the House of Representatives and the Senate’’. 11 (3) In 604(a)(3) (50 U.S.C. 12 1874(a)(3)), by striking ‘‘comply in the into’’ and 13 inserting ‘‘comply into’’. 14 (4) In section 701— 15 (A) in subsection (a), by striking ‘‘The 16 terms’’ and inserting ‘‘In this title, the terms’’; 17 and 18 (B) in subsection (b)— 19 (i) by inserting ‘‘In this title:’’ after 20 the subsection heading; and 21 (ii) in paragraph (5), by striking ‘‘(50 22 U.S.C. 23 U.S.C. 3003(4))’’. 401a(4))’’ and inserting ‘‘(50 24 (5) In section 702(g)(2)(A)(i) (50 U.S.C. 25 1881a(g)(2)(A)(i)), by inserting ‘‘targeting’’ before 26 ‘‘procedures in place’’. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 section 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML G:\CMTE\JD\15\FISA\FAA17_001.XML [Discussion Draft] 40 1 (6) In section 801(7) (50 U.S.C. 1885(7)), by 2 striking ‘‘(50 U.S.C. 401a(4))’’ and inserting ‘‘(50 3 U.S.C. 3003(4))’’. 4 5 SEC. 307. SEVERABILITY. If any provision of this Act, any amendment made 6 by this Act, or the application thereof to any person or 7 circumstances is held invalid, the validity of the remainder 8 of the Act, of any such amendments, and of the applica9 tion of such provisions to other persons and circumstances 10 shall not be affected thereby. g:\VHLC\100417\100417.142.xml October 4, 2017 (1:45 p.m.) VerDate 0ct 09 2002 13:45 Oct 04, 2017 Jkt 000000 (654754 66) PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FAA17_~1.XML