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AMENDMENT

IN THE
TO

OFFERED

NATURE

OF A

SUBSTITUTE

H.R. 3989

BY

Ml. llllll

Strike all after the enacting clause and insert the
following:
1
2

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(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.
Sec. 2. Amendments to the Foreign Intelligence Surveillance Act of 1978.
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. Application of certain amendments.
Sec. 109. Sense of Congress on purpose of section 702 and respecting foreign
nationals.
TITLE II—SAFEGUARDS AND OVERSIGHT OF PRIVACY AND CIVIL
LIBERTIES
Sec. 201. Limitation on retention of certain data.
Sec. 202. Improvements to Privacy and Civil Liberties Oversight Board.
Sec. 203. Privacy and civil liberties officers.
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2
Sec. 204. 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; effective dates.
Sec. 302. Increased penalty 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 and amendments to improve procedures of the
Foreign Intelligence Surveillance Court of Review.
Sec. 307. Severability.

1

SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE

2
3

SURVEILLANCE ACT OF 1978.

Except as otherwise expressly provided, whenever in

4 this Act an amendment or repeal is expressed in terms
5 of an amendment to, or a repeal of, a section or other
6 provision, the reference shall be considered to be made to
7 a section or other provision of the Foreign Intelligence
8 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

11

TITLE
I—FOREIGN
INTELLIGENCE SURVEILLANCE AND
ACCOUNTABILITY

12

SEC. 101. COURT ORDERS AND PROTECTION OF INCIDEN-

13

TALLY COLLECTED UNITED STATES PERSON

14

COMMUNICATIONS.

9
10

15

(a) IN GENERAL.—Section 702 (50 U.S.C. 1881a)

16 is amended—

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3
1
2

(1) by redesignating subsections (j) through (l)
as subsections (k) through (m), respectively; and

3

(2) by inserting after subsection (i) the fol-

4

lowing new subsection (j):

5

‘‘(j) REQUIREMENTS

6

TION OF

7

ACCESS

AND

DISSEMINA-

COLLECTIONS OF COMMUNICATIONS.—
‘‘(1) QUERY

REQUIREMENTS.—The

contents of

8

communications acquired under subsection (a) and

9

the information relating to the dialing, routing, ad-

10

dressing, signaling, or other similar noncontents in-

11

formation of such communications that are returned

12

in response to a query may be accessed only if the

13

query is reasonably designed to return foreign intel-

14

ligence information or evidence of a crime.

15
16

‘‘(2) COURT

ORDERS AND OTHER REQUIRE-

MENTS.—

17

‘‘(A) APPLICATION

TO COURT TO ACCESS

18

CONTENTS.—Except

19

graph (D), the contents of communications ac-

20

quired under subsection (a) may be accessed or

21

disseminated only upon—

as provided by subpara-

22

‘‘(i) an application by the Attorney

23

General to a judge of the Foreign Intel-

24

ligence Surveillance Court that describes

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FOR

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4
1

the determination of the Attorney General

2

that—

3

‘‘(I) there is probable cause to

4

believe that such contents provide evi-

5

dence of a crime specified in section

6

2516 of title 18, United States Code;

7

‘‘(II)

information

8

accessed or disseminated pursuant to

9

subparagraph (C) is not the sole basis

10

for such probable cause;

11

‘‘(III) such communications are

12

relevant to an authorized investigation

13

or assessment, provided that such in-

14

vestigation or assessment is not con-

15

ducted solely on the basis of activities

16

protected by the first amendment to

17

the Constitution of the United States;

18

and

19

‘‘(IV) any use of such commu-

20

nications pursuant to section 706 will

21

be carried out in accordance with such

22

section; and

23

‘‘(ii) an order of the judge under sub-

24

paragraph (B) approving such application.

25

‘‘(B) ORDER.—

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noncontents

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5
1

‘‘(i) APPROVAL.—Upon an application

2

made under subparagraph (A), the Foreign

3

Intelligence Surveillance Court shall enter

4

an order as requested or as modified by

5

the Court approving the access or dissemi-

6

nation of contents of communications cov-

7

ered by the application if the Court deter-

8

mines that, based on an independent re-

9

view—

10

‘‘(I) the application contains all

11

information required by clause (i) of

12

such subparagraph;

13

‘‘(II) on the basis of the facts in

14

the application, there is probable

15

cause to believe that such contents

16

provide evidence of a crime specified

17

in section 2516 of title 18, United

18

States Code; and

19

‘‘(III) the minimization proce-

20

dures adopted pursuant to subsection

21

(e) ensure the compliance with sub-

22

paragraph (A)(i)(IV).

23

‘‘(ii) REVIEW.—A denial of an appli-

24

cation made under subparagraph (A) may

25

be reviewed as provided in section 103.

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6
1
2

PROVAL TO ACCESS NONCONTENTS INFORMA-

3

TION.—Except

4

(D), the information of communications ac-

5

quired under subsection (a) relating to the dial-

6

ing, routing, addressing, signaling, or other

7

similar

8

accessed or disseminated only upon a deter-

9

mination by the Attorney General that—

as provided by subparagraph

noncontents

information

may

be

10

‘‘(i) such communications are relevant

11

to an authorized investigation or assess-

12

ment, provided that such investigation or

13

assessment is not conducted solely on the

14

basis of activities protected by the first

15

amendment to the Constitution of the

16

United States; and

17

‘‘(ii) any use of such communications

18

pursuant to section 706 will be carried out

19

in accordance with such section.

20

‘‘(D) EXCEPTIONS.—The requirement for

21

an order of a judge pursuant to subparagraph

22

(A) and the requirement for a determination by

23

the Attorney General under subparagraph (C),

24

respectively, shall not apply to accessing or dis-

25

seminating communications acquired under sub-

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AND SUPERVISORY AP-

‘‘(C) RELEVANCE

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7
1

section (a) if one or more of the following con-

2

ditions are met:

3

‘‘(i)

to

the

procedures

4

adopted under subsection (e)(3), the query

5

that returned such communications is rea-

6

sonably designed for the primary purpose

7

of returning foreign intelligence informa-

8

tion.

9

‘‘(ii) The Attorney General makes a

10

determination that the person identified by

11

the queried term is the subject of an order

12

based upon a finding of probable cause, or

13

emergency authorization, that authorizes

14

electronic surveillance or physical search

15

under this Act or title 18, United States

16

Code (other than such emergency author-

17

izations under title IV of this Act or sec-

18

tion 3125 of title 18, United States Code).

19

‘‘(iii) The Attorney General—

20

‘‘(I) reasonably determines that

21

an emergency situation requires the

22

accessing or dissemination of the com-

23

munications before an order pursuant

24

to subparagraph (A) authorizing such

25

access or dissemination, or before a

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Pursuant

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8
1

determination required under sub-

2

paragraph (C), as the case may be,

3

can with due diligence be obtained;

4

‘‘(II) reasonably believes that the

5

factual basis for the issuance of such

6

an order or such a determination ex-

7

ists; and

8

‘‘(III) with respect to the access

9

or dissemination of the contents of

10

communications under subparagraph

11

(A)—

12

‘‘(aa) informs the Court at

13

the time the Attorney General re-

14

quires the emergency access or

15

dissemination that the decision

16

has been made to employ the au-

17

thority under this clause;

18

‘‘(bb) makes an application

19

for an order under such subpara-

20

graph as soon as practicable, but

21

not less than 7 days after the At-

22

torney

23

emergency production; and

requires

such

24

‘‘(cc) may not use such com-

25

munications pursuant to section

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General

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9
1

706 if such application for an

2

order is denied, or in any other

3

case where the access or dissemi-

4

nation is terminated and no

5

order with respect to such access

6

or dissemination is issued pursu-

7

ant to subparagraph (A).

8

‘‘(iv) In the case of consent provided

9

pursuant to paragraph (6).

10

‘‘(E) LIMITATION

11

VEILLANCE OF UNITED STATES PERSONS.—If

12

the Attorney General determines that it is nec-

13

essary to conduct electronic surveillance on a

14

known United States person whose communica-

15

tions have been acquired under subsection (a),

16

the Attorney General may only conduct such

17

electronic surveillance using authority provided

18

under other provisions of law.

19

‘‘(F) SIMULTANEOUS

QUERY OF FBI DATA-

20

BASES.—Except

21

or applicable minimization procedures, the Di-

22

rector of the Federal Bureau of Investigation

23

shall ensure that all available investigative or

24

intelligence databases of the Federal Bureau of

25

Investigation are simultaneously queried when

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ON ELECTRONIC SUR-

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10
1

the Bureau properly uses an information sys-

2

tem of the Bureau to determine whether infor-

3

mation exists in such a database.

4

‘‘(G) DELEGATION.—The Attorney Gen-

5

eral shall delegate the authority under this

6

paragraph to the fewest number of officials that

7

the Attorney General determines practicable.

8

‘‘(3) RETENTION

9

The Attorney General and each Director concerned

10

shall retain records of queries of a collection of com-

11

munications acquired under subsection (a). Such

12

records shall—

13

‘‘(A) include such queries for not less than

14

5 years after the date on which the query is

15

made; and

16

‘‘(B) be maintained in a manner that is

17

auditable and available for congressional over-

18

sight.

19

‘‘(4) COMPLIANCE

AND

MAINTENANCE.—The

20

requirements of this subsection do not apply with re-

21

spect to queries made for the purpose of—

22

‘‘(A) submitting to Congress information

23

required by this Act or otherwise ensuring com-

24

pliance with the requirements of this section; or

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OF AUDITABLE RECORDS.—

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11
1

‘‘(B) performing maintenance or testing of

2

information systems.

3

‘‘(5) CONSENT.—The requirements of this sub-

4

section do not apply with respect to—

5

‘‘(A) queries made using a term identifying

6

a person who is a party to the communications

7

acquired under subsection (a), or a person who

8

otherwise has lawful authority to provide con-

9

sent, and who consents to such queries; or

10

‘‘(B) the accessing or the dissemination of

11

the contents of communications acquired under

12

subsection (a) of a person who is a party to the

13

communications, or a person who otherwise has

14

lawful authority to provide consent, and who

15

consents to such access or dissemination.

16

‘‘(6) DIRECTOR

this sub-

17

section, the term ‘Director concerned’ means the fol-

18

lowing:

19

‘‘(A) The Director of the National Security

20

Agency, with respect to matters concerning the

21

National Security Agency.

22

‘‘(B) The Director of the Federal Bureau

23

of Investigation, with respect to matters con-

24

cerning the Federal Bureau of Investigation.

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CONCERNED.—In

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12
1

‘‘(C) The Director of the Central Intel-

2

ligence Agency, with respect to matters con-

3

cerning the Central Intelligence Agency.

4

‘‘(D)

The

Director

of

the

National

5

Counterterrorism Center, with respect to mat-

6

ters concerning the National Counterterrorism

7

Center.’’.

8

(b) PROCEDURES.—Subsection (e) of such section

9 (50 U.S.C. 1881a(e)) is amended by adding at the end
10 the following new paragraph:
11

‘‘(3) CERTAIN

PROCEDURES FOR QUERYING.—

12

The minimization procedures adopted in accordance

13

with paragraph (1) shall describe a query reasonably

14

designed for the primary purpose of returning for-

15

eign

16

(j)(2)(D)(i).’’.

17

(c)

intelligence

information

CONFORMING

under

subsection

AMENDMENT.—Subsection

18 (g)(2)(B) of such section (50 U.S.C. 1881a(g)(2)(B)) is
19 amended by striking ‘‘and (e)’’ and inserting ‘‘(e), and
20 (j)’’.

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13
1

SEC. 102. LIMITATION ON COLLECTION AND IMPROVE-

2

MENTS TO TARGETING PROCEDURES AND

3

MINIMIZATION PROCEDURES.

4
5

(a) TARGETING PROCEDURES; LIMITATION
LECTION.—Subsection

ON

COL-

(d) of section 702 (50 U.S.C.

6 1881a(d)) is amended—
7

(1) in paragraph (1), by striking ‘‘The Attorney

8

General’’ and inserting ‘‘In accordance with para-

9

graphs (3) and (4), the Attorney General’’; and

10
11

(2) by adding at the end the following new
paragraphs:

12

‘‘(3) DUE

procedures adopted

13

in accordance with paragraph (1) shall require due

14

diligence in determining whether a person targeted

15

is a non-United States person reasonably believed to

16

be located outside the United States by—

17

‘‘(A) making the determination based on

18

the totality of the circumstances, including by,

19

to the extent practicable, ensuring that any con-

20

flicting information regarding whether the per-

21

son is reasonably believed to be located outside

22

the United States or is a United States person

23

is resolved before making such determination;

24

‘‘(B) documenting the processes under sub-

25

paragraph (A); and

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DILIGENCE.—The

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14
1

‘‘(C) documenting the rationale for why

2

targeting such person will result in the acquisi-

3

tion of foreign intelligence information author-

4

ized by subsection (a).

5

‘‘(4) LIMITATION.—During the period pre-

6

ceding September 30, 2023, the procedures adopted

7

in accordance with paragraph (1) shall require that

8

the targeting of a person is limited to communica-

9

tions to or from the targeted person.’’.

10

(b) MINIMIZATION PROCEDURES.—Subsection (e) of

11 such section (50 U.S.C. 1881a(e)), as amended by section
12 101, is further amended—
13

(1) in paragraph (1), by inserting ‘‘, and the re-

14

quirements of this subsection’’ before the period at

15

the end; and

16
17

(2) by adding at the end the following new
paragraph:

18

‘‘(4) REQUESTS

19

The procedures adopted under paragraph (1) shall

20

include specific procedures adopted by the Attorney

21

General for elements of the Federal Government to

22

submit requests to unmask information in dissemi-

23

nated intelligence reports. Such specific procedures

24

shall—

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TO UNMASK INFORMATION.—

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15
1

‘‘(A) require the documentation of the re-

2

questing individual that such request is for le-

3

gitimate reasons authorized pursuant to para-

4

graph (1); and

5

‘‘(B) require the retention of the records of

6

each request, including—

7

‘‘(i) a copy of the request;

8

‘‘(ii) the name and position of the in-

9

dividual who is making the request; and

10

‘‘(iii) if the request is approved, the

11

name and position of the individual who

12

approved the request and the date of the

13

approval.’’.

14

(c) UNMASK DEFINED.—Section 701(b) (50 U.S.C.

15 1881(b)) is amended by adding at the end the following
16 new paragraph:
17

‘‘(6) UNMASK.—The term ‘unmask’ means,

18

with respect to a disseminated intelligence report

19

containing a reference to a United States person

20

that does not identify that person (including by

21

name or title), to disseminate the identity of the

22

United States person, including the name or title of

23

the person.’’.

24

(d)

25 RECORDS

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CONSISTENT
ON

REQUESTS

REQUIREMENTS
TO

TO

RETAIN

UNMASK INFORMATION.—

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16
1 The Foreign Intelligence Surveillance Act of 1978 (50
2 U.S.C. 1801 et seq.) is amended as follows:
3

(1) In section 101(h) (50 U.S.C. 1801(h))—

4

(A) in paragraph (3), by striking ‘‘; and’’

5

and inserting a semicolon;

6

(B) in paragraph (4), by striking the pe-

7

riod at the end and inserting ‘‘; and’’; and

8

(C) by adding at the end the following new

9

paragraph:

10
11

‘‘(5) specific procedures as described in section
702(e)(4).’’.

12

(2) In section 301(4) (50 U.S.C. 1821(4))—

13

(A) in subparagraph (C), by striking ‘‘;

14

and’’ and inserting a semicolon;

15

(B) in subparagraph (D), by striking the

16

period at the end and inserting ‘‘; and’’; and

17

(C) by adding at the end the following new

18

subparagraph:

19

‘‘(E) specific procedures as described in

20

section 702(e)(4).’’.

21

(3) In section 402(h) (50 U.S.C. 1842(h))—

22

(A) by redesignating paragraph (2) as

23

paragraph (3); and

24

(B) by inserting after paragraph (1) the

25

following new paragraph (2):

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17
1

‘‘(2) REQUESTS

FOR NONPUBLICLY AVAILABLE

2

INFORMATION.—The

policies and procedures adopt-

3

ed under paragraph (1) shall include specific proce-

4

dures as described in section 702(e)(4).’’.

5
6

(4)

section

501(g)(2)

(50

U.S.C.

1861(g)(2))—

7

(A) in subparagraph (B), by striking ‘‘;

8

and’’ and inserting a semicolon;

9

(B) in subparagraph (C), by striking the

10

period at the end and inserting ‘‘; and’’; and

11

(C) by adding at the end the following new

12

subparagraph:

13

‘‘(D) specific procedures as described in

14
15

In

section 702(e)(4).’’.
(e) REPORT

ON

UNMASKING.—Not later than 90

16 days after the date of the enactment of this Act, the Direc17 tor of National Intelligence shall submit to the Permanent
18 Select Committee on Intelligence of the House of Rep19 resentatives, the Select Committee on Intelligence of the
20 Senate, and the Committees on the Judiciary of the House
21 of Representatives and the Senate a report on the progress
22 made by the Director with respect to—
23

(1) ensuring that incidentally collected commu-

24

nications of United States persons are properly

25

masked if masking is necessary; and

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18
1

(2) implementing procedures for requests to

2

unmask information under section 702(e)(4) of such

3

Act (50 U.S.C. 1881a(e)(4)), as added by subsection

4

(c).

5

SEC. 103. PUBLICATION OF MINIMIZATION PROCEDURES

6
7

UNDER SECTION 702.

Subsection (e) of section 702 (50 U.S.C. 1881a(e)),

8 as amended by sections 101 and 102, is further amended
9 by adding at the end the following new paragraph:
10

‘‘(5) PUBLICATION.—The Director of National

11

Intelligence, in consultation with the Attorney Gen-

12

eral, shall—

13

‘‘(A) conduct a declassification review of

14

any minimization procedures adopted or amend-

15

ed in accordance with paragraph (1); and

16

‘‘(B) consistent with such review, and not

17

later than 180 days after conducting such re-

18

view, make such minimization procedures pub-

19

licly available to the greatest extent practicable,

20

which may be in redacted form.’’.

21

SEC. 104. APPOINTMENT OF AMICUS CURIAE FOR ANNUAL

22
23

CERTIFICATIONS.

(a) IN GENERAL.—Section 103(i) (50 U.S.C.

24 1803(i)(2)) is amended—
25

(1) in paragraph (2)—

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19
1

(A) in subparagraph (A), by striking ‘‘;

2

and’’ and inserting a semicolon;

3

(B) by redesignating subparagraph (B) as

4

subparagraph (C); and

5

(C) by inserting after subparagraph (A)

6

the following new subparagraph (B):

7

‘‘(B) shall appoint an individual who has

8

been designated under paragraph (1) to serve

9

as amicus curiae to assist such court in the re-

10

view of a certification under section 702(i), un-

11

less the court issues a finding that such ap-

12

pointment is not appropriate; and’’; and

13

(2) in paragraphs (4) and (5), by striking

14

‘‘paragraph (2)(A)’’ both places it appears and in-

15

serting ‘‘subparagraph (A) or (B) of paragraph (2)’’.

16

(b) TIMING

OF

REVIEW.—Section 702(i)(1)(B) (50

17 U.S.C. 1881a(i)(1)(B)) is amended by adding at the end
18 the following new sentence: ‘‘Such 30-day period shall be
19 extended to 90 days if an individual is appointed under
20 section 103(i) to serve as amicus curiae to assist the Court
21 in the review of the certification.’’.
22

SEC. 105. INCREASED ACCOUNTABILITY ON INCIDENTALLY

23

COLLECTED COMMUNICATIONS.

24

Section 707 (50 U.S.C. 1881f) is amended by adding

25 at the end the following new subsection:

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20
1
2

‘‘(c) INCIDENTALLY COLLECTED COMMUNICATIONS
OTHER INFORMATION.—Together with the semi-

AND

3 annual report submitted under subsection (a), the Direc4 tor of National Intelligence shall submit to the congres5 sional committees specified in such subsection a report on
6 incidentally collected communications and other informa7 tion regarding United States persons under section 702.
8 Each such report shall include, with respect to the 69 month period covered by the report, the following:
10

‘‘(1) Except as provided by paragraph (2), the

11

number, or a good faith estimate, of communications

12

acquired under subsection (a) of such section of

13

United States persons, including a description of any

14

efforts of the intelligence community to ascertain

15

such number or good faith estimate.

16

‘‘(2) If the Director determines that calculating

17

the number, or a good faith estimate, under para-

18

graph (1) is not achievable, a detailed explanation

19

for why such calculation is not achievable.

20

‘‘(3) The number of—

21

‘‘(A) United States persons whose informa-

22

tion is unmasked pursuant to the procedures

23

adopted under subsection (e)(4) of such section;

24

‘‘(B) requests made by an element of the

25

Federal Government, listed by each such ele-

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21
1

ment, to unmask information pursuant to such

2

subsection; and

3

‘‘(C) requests that resulted in the dissemi-

4

nation of names, titles, or other identifiers po-

5

tentially associated with individuals pursuant to

6

such subsection, including the element of the in-

7

telligence community and position of the indi-

8

vidual making the request.

9

‘‘(4) The number of disseminations of commu-

10

nications acquired under subsection (a) of section

11

702 to the Federal Bureau of Investigation for cases

12

unrelated to foreign intelligence.

13

‘‘(5) The number of instances in which evidence

14

of a crime unrelated to foreign intelligence that was

15

identified in communications acquired under sub-

16

section (a) of section 702 was disseminated from the

17

national security branch of the Bureau to the crimi-

18

nal investigative division of the Bureau (or from

19

such successor branch to such successor division).

20

‘‘(6) The number of individuals to whom the

21

Attorney General has delegated authority pursuant

22

to subsection (j)(2)(G) of section 702.’’.

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22
1

SEC. 106. SEMIANNUAL REPORTS ON CERTAIN QUERIES BY

2
3

FEDERAL BUREAU OF INVESTIGATION.

Section 707 (50 U.S.C. 1881f), as amended by sec-

4 tion 105, is further amended by adding at the end the
5 following new subsection:
6

‘‘(d) SEMIANNUAL FBI REPORTS.—Together with

7 the semiannual report submitted under subsection (a), the
8 Director of the Federal Bureau of Investigation shall sub9 mit to the congressional committees specified in such sub10 section, and make publicly available, a report containing,
11 with respect to the period covered by the report—
12

‘‘(1) the number of applications made by the

13

Federal Bureau of Investigation described in sub-

14

section (j)(2)(A) of section 702;

15

‘‘(2) the number of such applications that were

16

approved and resulted in communications being

17

accessed or disseminated pursuant to such sub-

18

section; and

19

‘‘(3) the number of determinations made by the

20

Attorney General pursuant to subsection (j)(2)(C) of

21

such section.’’.

22
23

SEC. 107. ADDITIONAL REPORTING REQUIREMENTS.

(a) ELECTRONIC SURVEILLANCE.—Section 107 (50

24 U.S.C. 1807) is amended to read as follows:

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23
1
2

‘‘SEC. 107. REPORT OF ELECTRONIC SURVEILLANCE.

‘‘(a) ANNUAL REPORT.—In April of each year, the

3 Attorney General shall transmit to the Administrative Of4 fice of the United States Courts and to Congress a report
5 setting forth with respect to the preceding calendar year—
6

‘‘(1) the total number of applications made for

7

orders and extensions of orders approving electronic

8

surveillance under this title;

9
10

‘‘(2) the total number of such orders and extensions either granted, modified, or denied; and

11

‘‘(3) the total number of persons who were sub-

12

ject to electronic surveillance conducted under an

13

order or emergency authorization under this title,

14

rounded to the nearest 500, including the number of

15

such individuals who are United States persons, re-

16

ported to the nearest band of 500, starting with 0–

17

499.

18

‘‘(b) FORM.—Each report under subsection (a) shall

19 be submitted in unclassified form. Not later than 7 days
20 after the date on which the Attorney General submits each
21 such report, the Attorney General shall make the report
22 publicly available.’’.
23
24

(b) PEN REGISTERS
VICES.—Section

25

16:42 Oct 19, 2017

TRAP

AND

TRACE DE-

406 (50 U.S.C. 1846) is amended—

(1) in subsection (b)—

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AND

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24
1

(A) in paragraph (4), by striking ‘‘; and’’

2

and inserting a semicolon;

3

(B) in paragraph (5), by striking the pe-

4

riod at the end and inserting ‘‘; and’’; and

5

(C) by adding at the end the following new

6

paragraph:

7

‘‘(6) a good faith estimate of the total number

8

of subjects who were targeted by the installation and

9

use of a pen register or trap and trace device under

10

an order or emergency authorization issued under

11

this title, rounded to the nearest 500, including—

12

‘‘(A) the number of such subjects who are

13

United States persons, reported to the nearest

14

band of 500, starting with 0–499; and

15

‘‘(B) of the number of United States per-

16

sons described in subparagraph (A), the num-

17

ber of persons whose information acquired pur-

18

suant to such order was reviewed or accessed by

19

a Federal officer, employee, or agent, reported

20

to the nearest band of 500, starting with 0–

21

499.’’; and

22

(2) by adding at the end the following new sub-

23

section:

24

‘‘(c) Each report under subsection (b) shall be sub-

25 mitted in unclassified form. Not later than 7 days after

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25
1 the date on which the Attorney General submits such a
2 report, the Attorney General shall make such report pub3 licly available.’’.
4
5

SEC. 108. APPLICATION OF CERTAIN AMENDMENTS.

The amendments made by sections 101, 102, and

6 201(a) to the Foreign Intelligence Surveillance Act of
7 1978 (50 U.S.C. 1801 et seq.) shall apply with respect
8 to orders, certifications, and procedures submitted to the
9 Foreign Intelligence Surveillance Court on or after the
10 date that is 120 days after the date of the enactment of
11 this Act.
12

SEC. 109. SENSE OF CONGRESS ON PURPOSE OF SECTION

13
14

702 AND RESPECTING FOREIGN NATIONALS.

It is the sense of Congress that—

15

(1) the acquisition of communications by the

16

National Security Agency under section 702 of the

17

Foreign Intelligence Surveillance Act (50 U.S.C.

18

1881a) should be conducted within the bounds of

19

treaties and agreements to which the United States

20

is a party, and there should be no targeting of non-

21

United States persons for any unfounded discrimina-

22

tory purpose or for the purpose of affording a com-

23

mercial competitive advantage to companies and

24

business sectors of the United States; and

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26
1

(2) the authority to collect intelligence under

2

such section 702 is meant to shield the United

3

States, and by extension, the allies of the United

4

States, from security threats both at home and

5

abroad.

8

TITLE
II—SAFEGUARDS
AND
OVERSIGHT OF PRIVACY AND
CIVIL LIBERTIES

9

SEC. 201. LIMITATION ON RETENTION OF CERTAIN DATA.

6
7

10

(a) REQUIRED PURGING.—Subsection (e) of section

11 702 (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.

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ON RETENTION.—

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27
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.

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INCLUDED IN SEMIANNUAL AS-

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28
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)—

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29
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)

technological

challenges

and

24

changes in technology affect the prevention and de-

25

fense of terrorism, and how effectively the foreign

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whether

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30
1

intelligence elements of the intelligence community

2

have responded to those challenges; and

3

(3) how privacy and civil liberties are affected

4

by the actions identified under paragraph (1) and

5

the changes in technology identified under para-

6

graph (2), and whether race, religion, political affili-

7

ation, or activities protected by the First Amend-

8

ment are determinative in the targeting or querying

9

decisions made pursuant to such section 702.

10

SEC. 203. PRIVACY AND CIVIL LIBERTIES OFFICERS.

11

(a) CODIFICATION

OF

CERTAIN OFFICERS.—Section

12 1062(a) of the Intelligence Reform and Terrorism Preven13 tion Act of 2004 (42 U.S.C. 2000ee–1(a)) is amended by
14 inserting ‘‘, the Director of the National Security Agency,
15 the Director of the Federal Bureau of Investigation’’ after
16 ‘‘the Director of the Central Intelligence Agency’’.
17
18

(b) ANNUAL REPORTS
TIONS OF

ON INCIDENTAL

COMMUNICA-

UNITED STATES PERSONS.—Paragraph (4)(A)

19 of subsection (m) of section 702 (50 U.S.C. 1881a), as
20 redesignated by sections 101 and 201, is amended—
21
22

(1) in clause (iii), by striking ‘‘; and’’ and inserting a semicolon;

23
24

(2) in clause (iv), by striking the period at the
end and inserting ‘‘; and’’; and

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31
1
2

(3) by adding at the end the following new
clause:

3

‘‘(v) a review by the privacy and civil

4

liberties officer of the element of inciden-

5

tally collected communications of United

6

States persons.’’.

7

SEC. 204. WHISTLEBLOWER PROTECTIONS FOR CONTRAC-

8
9
10

TORS OF THE INTELLIGENCE COMMUNITY.

(a) PROHIBITED PERSONNEL PRACTICES
TELLIGENCE

IN THE IN-

COMMUNITY.—Section 1104 of the National

11 Security Act of 1947 (50 U.S.C. 3234) is amended—
12
13

(1) in subsection (a), by adding at the end the
following new paragraph:

14

‘‘(4) CONTRACTOR

EMPLOYEE.—The

term ‘con-

15

tractor employee’ means an employee of a con-

16

tractor, subcontractor, grantee, subgrantee, or per-

17

sonal services contractor, of a covered intelligence

18

community element.’’;

19
20

(2) by redesignating subsections (c) and (d) as
subsections (d) and (e), respectively;

21

(3) by inserting after subsection (b) the fol-

22

lowing new subsection (c):

23

‘‘(c) CONTRACTOR EMPLOYEES.—(1) Any employee

24 of a contractor, subcontractor, grantee, subgrantee, or
25 personal services contractor, of a covered intelligence com-

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32
1 munity element, or any employee of an agency, who has
2 authority to take, direct others to take, recommend, or ap3 prove any personnel action, shall not, with respect to such
4 authority, take or fail to take a personnel action with re5 spect to any contractor employee as a reprisal for a lawful
6 disclosure of information by the contractor employee to
7 the Director of National Intelligence (or an employee des8 ignated by the Director of National Intelligence for such
9 purpose), the Inspector General of the Intelligence Com10 munity, the head of the contracting agency (or an em11 ployee designated by the head of that agency for such pur12 pose), the appropriate inspector general of the contracting
13 agency, a congressional intelligence committee, or a mem14 ber of a congressional intelligence committee, which the
15 contractor employee reasonably believes evidences—
16

‘‘(A) a violation of any Federal law, rule, or

17

regulation (including with respect to evidence of an-

18

other employee or contractor employee accessing or

19

sharing classified information without authoriza-

20

tion); or

21

‘‘(B) mismanagement, a gross waste of funds,

22

an abuse of authority, or a substantial and specific

23

danger to public health or safety.

24

‘‘(2) A personnel action under paragraph (1) is pro-

25 hibited even if the action is undertaken at the request of

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33
1 an agency official, unless the request takes the form of
2 a nondiscretionary directive and is within the authority of
3 the agency official making the request.
4

‘‘(3) A contractor employee may raise a violation of

5 paragraph (1) in any proceeding to implement or challenge
6 a personnel action described in such paragraph.’’;
7
8

(4) in subsection (b), by striking the heading
and inserting ‘‘AGENCY EMPLOYEES.—’’; and

9

(5) in subsection (e), as redesignated by para-

10

graph (2), by inserting ‘‘contractor employee,’’ after

11

‘‘any employee,’’.

12

(b) FEDERAL BUREAU OF INVESTIGATION.—

13

(1) IN

employee of a con-

14

tractor, subcontractor, grantee, subgrantee, or per-

15

sonal services contractor, of the Federal Bureau of

16

Investigation, or any employee of the Bureau, who

17

has authority to take, direct others to take, rec-

18

ommend, or approve any personnel action, shall not,

19

with respect to such authority, take or fail to take

20

a personnel action with respect to a contractor em-

21

ployee as a reprisal for a disclosure of information—

22

(A) made—

23

(i) to a supervisor in the direct chain

24

of command of the contractor employee, up

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GENERAL.—Any

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34
1

to and including the Director of the Fed-

2

eral Bureau of Investigation;

3

(ii) to the Inspector General;

4

(iii) to the Office of Professional Re-

5

sponsibility of the Department of Justice;

6

(iv) to the Office of Professional Re-

7

sponsibility of the Federal Bureau of In-

8

vestigation;

9

(v) to the Inspection Division of the

10

Federal Bureau of Investigation;

11

(vi) as described in section 7211 of

12

title 5, United States Code;

13

(vii) to the Office of Special Counsel;

14

or

15

(viii) to an employee designated by

16

any officer, employee, office, or division de-

17

scribed in clauses (i) through (vii) for the

18

purpose of receiving such disclosures; and

19

(B) which the contractor employee reason-

20

ably believes evidences—

21

(i) any violation of any law, rule, or

22

regulation (including with respect to evi-

23

dence of another employee or contractor

24

employee accessing or sharing classified in-

25

formation without authorization); or

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35
1

(ii) gross mismanagement, a gross

2

waste of funds, an abuse of authority, or

3

a substantial and specific danger to public

4

health or safety.

5

(2) ACTIONS

personnel action

6

under paragraph (1) is prohibited even if the action

7

is undertaken at the request of an official of the Bu-

8

reau, unless the request takes the form of a nondis-

9

cretionary directive and is within the authority of

10

the official making the request.

11

(3) VIOLATION.—A contractor employee may

12

raise a violation of paragraph (1) in any proceeding

13

to implement or challenge a personnel action de-

14

scribed in such paragraph.

15

(4) REGULATIONS.—The Attorney General shall

16

prescribe regulations to ensure that a personnel ac-

17

tion described in paragraph (1) shall not be taken

18

against a contractor employee of the Bureau as a re-

19

prisal for any disclosure of information described in

20

subparagraph (A) of such paragraph.

21

(5) ENFORCEMENT.—The President shall pro-

22

vide for the enforcement of this subsection in a man-

23

ner consistent with applicable provisions of sections

24

1214 and 1221 of title 5, United States Code.

25

(6) DEFINITIONS.—In this subsection:

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BY REQUEST.—A

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36
1

(A)

The

term

‘‘contractor

employee’’

2

means an employee of a contractor, subcon-

3

tractor, grantee, subgrantee, or personal serv-

4

ices contractor, of the Federal Bureau of Inves-

5

tigation.

6

(B) The term ‘‘personnel action’’ means

7

any action described in clauses (i) through (x)

8

of section 2302(a)(2)(A) of title 5, United

9

States Code, with respect to a contractor em-

10
11

ployee.
(c)

RETALIATORY

12 CLEARANCES

AND

REVOCATION

OF

SECURITY

ACCESS DETERMINATIONS.—Section

13 3001(j) of the Intelligence Reform and Terrorism Preven14 tion Act of 2004 (50 U.S.C. 3341(j)) is amended by add15 ing at the end the following new paragraph:
16

‘‘(8) INCLUSION

CONTRACTOR

EMPLOY-

17

EES.—In

18

cludes an employee of a contractor, subcontractor,

19

grantee, subgrantee, or personal services contractor,

20

of an agency. With respect to such employees, the

21

term ‘employing agency’ shall be deemed to be the

22

contracting agency.’’.

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37

4

TITLE III—EXTENSION OF AUTHORITIES, INCREASED PENALTIES,
REPORTS,
AND
OTHER MATTERS

5

SEC. 301. EXTENSION OF TITLE VII OF FISA; EFFECTIVE

1
2
3

6
7

DATES.

(a) EXTENSION.—Section 403(b) of the FISA

8 Amendments Act of 2008 (Public Law 110–261; 122 Stat.
9 2474) is amended—
10

(1) in paragraph (1)—

11

(A) by striking ‘‘December 31, 2017’’ and

12

inserting ‘‘September 30, 2023’’; and

13

(B) by inserting ‘‘and by the USA Liberty

14

Act of 2017’’ after ‘‘section 101(a)’’; and

15

(2) in paragraph (2) in the matter preceding

16

subparagraph (A), by striking ‘‘December 31, 2017’’

17

and inserting ‘‘September 30, 2023’’.

18

(b) CONFORMING AMENDMENTS.—Section 404(b) of

19 the FISA Amendments Act of 2008 (Public Law 110–261;
20 122 Stat. 2476) is amended—
21

(1) in paragraph (1)—

22

(A) in the heading, by striking ‘‘DECEM-

23

BER 31, 2017’’

24

2023’’;

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30,

and

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38
1

(B) by inserting ‘‘and by the USA Liberty

2

Act of 2017’’ after ‘‘section 101(a)’’;

3

(2) in paragraph (2), by inserting ‘‘and by the

4

USA Liberty Act of 2017’’ after ‘‘section 101(a)’’;

5

and

6

(3) in paragraph (4)—

7

(A) by striking ‘‘702(l)’’ each place it ap-

8

pears and inserting ‘‘702(m)’’;

9

(B) by inserting ‘‘and amended by the

10

USA Liberty Act of 2017’’ after ‘‘as added by

11

section 101(a)’’ both places it appears; and

12

(C) by inserting ‘‘and by the USA Liberty

13

Act of 2017’’ after ‘‘as amended by section

14

101(a)’’ both places it appears.

15

(c) EFFECTIVE DATE

OF

AMENDMENTS

TO

FAA.—

16 The amendments made to the FISA Amendments Act of
17 2008 (Public Law 110–261) by this section shall take ef18 fect on the earlier of the date of the enactment of this
19 Act or December 31, 2017.
20

SEC. 302. INCREASED PENALTY FOR UNAUTHORIZED RE-

21

MOVAL AND RETENTION OF CLASSIFIED DOC-

22

UMENTS OR MATERIAL.

23

Section 1924(a) of title 18, United States Code, is

24 amended by striking ‘‘one year’’ and inserting ‘‘five
25 years’’.

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39
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 and to reduce overclassification.

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40
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

to the handling of classified information and

14

the avoidance of overclassification.

15

(c) COOPERATION.—The heads of the intelligence

16 community shall provide to the Comptroller General infor17 mation the Comptroller General determines necessary to
18 carry out the study under subsection (a).
19

(d) REPORT.—Not later than 180 days after the date

20 of the enactment of this Act, the Comptroller General shall
21 submit to the Committee on the Judiciary and the Perma22 nent Select Committee on Intelligence of the House of
23 Representatives and the Committee on the Judiciary and
24 the Select Committee on Intelligence of the Senate a re25 port containing the study under subsection (a).

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41
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, when lawful and ap22 propriate, the President should share information learned
23 by acquiring communications under section 702 of the
24 Foreign Intelligence Surveillance Act (50 U.S.C. 1881a)

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42
1 with allies of the United States to prevent and defend
2 against terrorism.
3

SEC. 306. TECHNICAL AMENDMENTS AND AMENDMENTS TO

4

IMPROVE PROCEDURES OF THE FOREIGN IN-

5

TELLIGENCE SURVEILLANCE COURT OF RE-

6

VIEW.

7

(a) TECHNICAL AMENDMENTS.—The Foreign Intel-

8 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
9 is amended as follows:
10

(1) In section 103(b) (50 U.S.C. 1803(b)), by

11

striking ‘‘designate as the’’ and inserting ‘‘des-

12

ignated as the’’.

13

(2) In section 302(a)(1)(A)(iii) (50 U.S.C.

14

1822(a)(1)(A)(iii)), by striking ‘‘paragraphs (1)

15

through (4)’’ and inserting ‘‘subparagraphs (A)

16

through (D)’’.

17

(3) In section 406(b) (50 U.S.C. 1846(b)), by

18

striking ‘‘and to the Committees on the Judiciary of

19

the House of Representatives and the Senate’’.

20

(4) In section 604(a) (50 U.S.C. 1874(a))—

21

(A) in paragraph (1)(D), by striking ‘‘con-

22

tents’’ and inserting ‘‘contents,’’; and

23

(B) in paragraph (3), by striking ‘‘comply

24

in the into’’ and inserting ‘‘comply into’’.

25

(5) In section 701 (50 U.S.C. 1881)—

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43
1

(A) in subsection (a), by striking ‘‘The

2

terms’’ and inserting ‘‘In this title, the terms’’;

3

and

4

(B) in subsection (b)—

5

(i) by inserting ‘‘In this title:’’ after

6

the subsection heading; and

7

(ii) in paragraph (5), by striking ‘‘(50

8

U.S.C.

9

U.S.C. 3003(4))’’.

401a(4))’’

and

inserting

‘‘(50

10

(6) In section 702(g)(2)(A)(i) (50 U.S.C.

11

1881a(g)(2)(A)(i)), by inserting ‘‘targeting’’ before

12

‘‘procedures in place’’.

13

(7) In section 801(7) (50 U.S.C. 1885(7)), by

14

striking ‘‘(50 U.S.C. 401a(4))’’ and inserting ‘‘(50

15

U.S.C. 3003(4))’’.

16

(b) COURT-RELATED AMENDMENTS.—The Foreign

17 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
18 seq.) is further amended as follows:
19

(1) In section 103 (50 U.S.C. 1803)—

20

(A) in subsection (b), by striking ‘‘imme-

21

diately’’; and

22

(B) in subsection (h), by striking ‘‘the

23

court established under subsection (a)’’ and in-

24

serting ‘‘a court established under this section’’.

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44
1

(2) In section 105(d) (50 U.S.C. 1805(d)), by

2

adding at the end the following new paragraph:

3

‘‘(4) A denial of the application made under section

4 104 may be reviewed as provided in section 103.’’.
5
6

(3) In section 302(d) (50 U.S.C. 1822(d)), by
striking ‘‘immediately’’.

7

(4) In section 402(d) (50 U.S.C. 1842(d)), by

8

adding at the end the following new paragraph:

9

‘‘(3) A denial of the application made under this sub-

10 section may be reviewed as provided in section 103.’’.
11

(5) In section 403(c) (50 U.S.C. 1843(c)), by

12

adding at the end the following new paragraph:

13

‘‘(3) A denial of the application made under sub-

14 section (a)(2) may be reviewed as provided in section
15 103.’’.
16
17

(6) In section 501(c) (50 U.S.C. 1861(c)), by
adding at the end the following new paragraph:

18

‘‘(4) A denial of the application made under

19

this subsection may be reviewed as provided in sec-

20

tion 103.’’.

21
22

SEC. 307. SEVERABILITY.

If any provision of this Act, any amendment made

23 by this Act, or the application thereof to any person or
24 circumstances is held invalid, the validity of the remainder
25 of the Act, of any such amendments, and of the applica-

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45
1 tion of such provisions to other persons and circumstances
2 shall not be affected thereby.

◊

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 Page 1

H.R. 3989, Uniting and Strengthening American (USA) Liberty Act of 2017
Section-by-Section
H.R. 3989, the USA Liberty Act of 2017 preserves the core purpose of Section 702: the
collection of electronic communications for use in our nation's defense. Recognizing the sheer
amount of information collected under Section 702, however, the bill also creates a new
framework of protections and transparency requirements to ensure that the government's use of
Section 702 accords with principles of privacy and due process.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE AND ACCOUNTABILITY
Sec.101. Court orders and protection of incidentally collected United States person
communications.
Only queries designed to return foreign intelligence information or evidence of a crime may
permit access to 702 content.
Prohibits the government from accessing or disseminating Section 702 content to advance a
criminal investigation without a probable cause order, otherwise known as a "warrant" in criminal
investigations, approved by the FISA Court.
Use of 702-derived information must be in accord with notice requirements to the defense in a
criminal prosecution.
Includes exceptions for emergencies, consent, and for cases where a probable cause-based
order or warrant already exists on the target. Does not apply to queries intended to return
foreign intelligence information.
Prohibits a government agent/analyst from accessing or disseminating non-content information
derived from Section 702 unless the access has been approved by a supervisor and the
information is shown to be relevant to an authorized investigation.
Requires new minimization procedures to describe what "query reasonably designed for the
primary purpose of returning foreign intelligence information" means.
*Note: This section does not impose any burden on the querying of information in assessments
or investigations of the FBI.
Sec.102. Limitation on collection and improvements to targeting procedures and
minimization procedures.
Codifies due diligence procedures used by the government to determine whether or not a target
of Section 702 surveillance is believed to be a non-United States person located outside of the
United States.

Page 2

Ends so-called "about" collection for the 702 reauthorization period by ensuring that the
government may only target communications that are to or from the targeted person.
Reforms "unmasking" procedures. Requires officials to document unmasking requests that are
auditable by Congress and to certify that unmasking requests are made only for legitimate
reasons. Requires a report on unmasking by the Director of National Intelligence to the
Committees on the Judiciary and the Select Committees on Intelligence.
Sec.103. Publication of minimization procedures under section 702.
The DNI, in consultation with the AG, shall conduct a declassification review of a minimization
procedures, and to the extent practicable, make such review publicly available in redacted form.
Sec.104. Appointment of amicus curiae for annual certifications.
Appoints an amicus curiae to the FISA Court by default. The amicus will review minimization
and targeting procedures. The Court may decline to appoint an amicus, but must document its
reasons for doing so.
Sec.105. Increased accountability on incidentally collected communications.
Requires the DNI to report on known incidentally collected U.S.-person communications and
other information of U.S. persons acquired under Section 702 including: the number of U.S.persons, and the number of U.S.-persons whose information is unmasked, the number of
requests made by the federal government to unmask information, the number of disseminations
of communications to the FBI that are unrelated to foreign intelligence, and the number of times
that communications containing evidence of a crime were disseminated from FBI's National
Security Branch to FBI's Criminal Investigative Division.
Requires the AG to specify the number of individuals to whom he has delegated authority under
Section 702(j)(2)(G).
Sec.106. Semiannual reports on certain queries by Federal Bureau of Investigation.
Requires the FBI to report semiannually on its use of the new probable cause and non-contents
construct in Section 101.
Sec.107. Additional reporting requirements.
Requires the AG to submit an annual report on the government's use of FISA, detailing: the total
number of applications made for orders and extension of orders; the total number of orders and
extensions approving surveillance granted, modified, or denied; and, the total number of
persons subject to surveillance conducted under an order or emergency authorization.

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Requires the AG to provide a good faith estimate of the total number of subjects targeted by the
installation and use of a pen register or trap and trace device under emergency authorization.
Sec.108. Application of Certain Amendments.
Requires the FISA Court and the government to implement new statutory requirements within
120 days.
Sec.109. Sense of Congress on purpose of section 702 and respecting foreign nationals.
Expresses the sense of Congress that Section 702 surveillance should be conducted within the
bounds of U.S. treaties and agreements, and there should be no targeting of non-U.S. persons
for any unfounded discriminatory purpose, or for the purpose of affording a commercial
competitive advantage to companies and business sectors of the U.S.
The authority to collect intelligence under Section 702 is meant to shield the U.S. and its allies
from security threats both at home and abroad.
TITLE II--SAFEGUARDS AND OVERSIGHT OF PRIVACY AND CIVIL LIBERTIES
Sec.201. Limitation on retention of certain data.
Requires the purging of communications determined not to contain foreign intelligence
information within 90 days, absent a specific, individualized waiver by Director of NSA.
Requires the Director to include the number of times a waiver is used to preserve
communications determined not to contain foreign intelligence information longer than 90 days
in the semiannual report to the Committees on the Judiciary and Select Committees on
Intelligence.
Sec.202. Improvements to Privacy and Civil Liberties Oversight Board.
Allows members of the Privacy and Civil Liberties Oversight Board to exercise authority of the
Chair of the Board to hire new staff if the Chair remains vacant for more than one year.
Requires PCLOB to issue a report to the Committees on the Judiciary and Select Committees
on Intelligence on: 1) how Section 702 is used to protect the United States, 2) how technological
changes affect such protections, and 3) how privacy and civil liberties are affected, and whether
race, religion, political affiliation, or First Amendment activities are determinative in 702 targeting
or querying.

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Sec.203. Privacy and civil liberties officers.
Requires the NSA, FBI, and CIA to each appoint an official for privacy and civil liberties issues.
Sec.204. Whistleblower protections for contractors of the intelligence community.
Provides whistleblower protections to IC contractors who report on waste, fraud, and abuse, or
who report on the unauthorized disclosure of classified material. This includes FBI.
TITLE III--EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND
OTHER MATTERS
Sec.301. Extension of title VII of FISA.
Reauthorizes Title VII of FISA through September 30, 2023.
Sec.302. Increased penalty for unauthorized removal and retention of classified
documents or material.
Increases the penalty for the intentional, unauthorized removal and retention of classified
documents from a misdemeanor to a felony, punishable by one to five years.
Sec.303. Comptroller General study on unauthorized disclosures and the classification
system.
Directs the Comptroller General to conduct a study on the unauthorized disclosure of classified
information and the classification system of the United States, including how to reduce/avoid
over-classification.
Sec.304. Sense of Congress on information sharing among intelligence community to
protect national security.
Expresses the sense of Congress that the United States Government should ensure that the
barriers to sharing vital national security information across the Intelligence Community are not
re-imposed.
Sec.305. Sense of Congress on combating terrorism.
Expresses that sense of Congress that, when lawful and appropriate, the President should
share 702-acquired communications with allies of the United States to protect the United States.

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Sec.306. Technical amendments and amendments to improve procedures of the Foreign
Intelligence Surveillance Court of Review.
Makes technical amendments, including amendments related to the appellate function of the
Foreign Intelligence Surveillance Court of Review.
Sec.307. Severability.
Provides for severability of any section of the Act if found invalid.