G:\CMTE\JD\15\FISA\H3989_ANS.XML 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 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. 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. g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 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 SURVEILLANCE ACT OF 1978. 3 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— g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 3 1 (1) by redesignating subsections (j) through (l) 2 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 AND DISSEMINA- COLLECTIONS OF COMMUNICATIONS.— ‘‘(1) QUERY PURPOSES.—The contents of com- 8 munications acquired under subsection (a) and the 9 information relating to the dialing, routing, address- 10 ing, signaling, or other similar noncontents informa- 11 tion of such communications that are returned in re- 12 sponse to a query may be accessed only if the query 13 is reasonably designed to return foreign intelligence 14 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 g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 ACCESS FOR 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 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) such communications are 8 relevant to an authorized investigation 9 or assessment, provided that such in- 10 vestigation or assessment is not con- 11 ducted solely on the basis of activities 12 protected by the first amendment to 13 the Constitution of the United States; 14 and 15 ‘‘(III) any use of such commu- 16 nications pursuant to section 706 will 17 be carried out in accordance with such 18 section; and 19 ‘‘(ii) an order of the judge under sub- 20 paragraph (B) approving such application. 21 ‘‘(B) ORDER.— 22 ‘‘(i) APPROVAL.—Upon an application 23 made under subparagraph (A), the Foreign 24 Intelligence Surveillance Court shall enter 25 an order as requested or as modified by g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 5 1 the Court approving the access or dissemi- 2 nation of contents of communications cov- 3 ered by the application if the Court deter- 4 mines that, based on an independent re- 5 view— 6 ‘‘(I) the application contains all 7 information required by clause (i) of 8 such subparagraph; 9 ‘‘(II) on the basis of the facts in 10 the application, there is probable 11 cause to believe that such contents 12 provide evidence of a crime specified 13 in section 2516 of title 18, United 14 States Code; and 15 ‘‘(III) the minimization proce- 16 dures adopted pursuant to subsection 17 (e) will ensure compliance with sub- 18 paragraph (A)(i)(III). 19 ‘‘(ii) REVIEW.—A denial of an appli- 20 cation made under subparagraph (A) may 21 be reviewed as provided in section 103. 22 ‘‘(C) RELEVANCE 23 PROVAL TO ACCESS NONCONTENTS INFORMA- 24 TION.—Except 25 (D), the information of communications ac- g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 AND SUPERVISORY AP- 17:01 Nov 02, 2017 Jkt 000000 as provided by subparagraph (677563 19) PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 6 1 quired under subsection (a) relating to the dial- 2 ing, routing, addressing, signaling, or other 3 similar 4 accessed or disseminated only— information may be 5 ‘‘(i) with supervisory approval; 6 ‘‘(ii) if such information is not sought 7 solely on the basis of activities protected by 8 the first amendment to the Constitution of 9 the United States; 10 ‘‘(iii) if an order based on probable 11 cause would not be required by law to ob- 12 tain such information if requested as part 13 of an investigation of a Federal crime; and 14 ‘‘(iv) if any use of such communica- 15 tions pursuant to section 706 will be car- 16 ried out in accordance with such section. 17 ‘‘(D) EXCEPTIONS.—The requirement for 18 an order of a judge pursuant to subparagraph 19 (A) and the requirement for approval under 20 subparagraph (C), respectively, shall not apply 21 to accessing or disseminating communications 22 acquired under subsection (a) if one or more of 23 the following conditions are met: 24 ‘‘(i) 25 17:01 Nov 02, 2017 Pursuant to the procedures adopted under subsection (e)(3), the query g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 noncontents Jkt 000000 (677563 19) PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 7 1 that returned such communications (or 2 other process that returned such commu- 3 nications) is reasonably designed for the 4 purpose of returning foreign intelligence 5 information, including information about 6 activity described in section 101(e) that 7 may otherwise constitute an offense under 8 title 18, United States Code. 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 ap- g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 8 1 proval required under subparagraph 2 (C), as the case may be, can with due 3 diligence be obtained; 4 ‘‘(II) reasonably believes that the 5 factual basis for the issuance of such 6 an order or such approval exists; and 7 ‘‘(III) with respect to the access 8 or dissemination of the contents of 9 communications under subparagraph 10 (A)— 11 ‘‘(aa) informs the Court at 12 the time the Attorney General re- 13 quires the emergency access or 14 dissemination that the decision 15 has been made to employ the au- 16 thority under this clause; and 17 ‘‘(bb) may not use such 18 communications pursuant to sec- 19 tion 706 if the Court finds that 20 the determination by the Attor- 21 ney General with respect to the 22 emergency situation was not ap- 23 propriate. 24 ‘‘(iv)(I) Subject to section 706(a)(2), 25 based on a review described in item (II), g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 9 1 the Attorney General reasonably deter- 2 mines that the person identified by the 3 queried term is, or is communicating 4 with— 5 ‘‘(aa) a person reasonably be- 6 lieved to be engaged in international 7 terrorism 8 101(c)) or activities in preparation 9 therefore; or defined in section 10 ‘‘(bb) a person reasonably be- 11 lieved to be acting for, or in further- 12 ance of, the goals or objectives of an 13 international terrorist or international 14 terrorist organization. 15 ‘‘(II) A review described in this item 16 is a review of information of communica- 17 tions acquired under subsection (a) relat- 18 ing to the dialing, routing, addressing, sig- 19 naling, or other similar noncontents infor- 20 mation, that causes the Attorney General 21 to reasonably suspect that— 22 ‘‘(aa) a person who is a party to 23 such communications is engaged in an 24 act of terrorism specified in clauses (i) 25 through g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 (as 17:01 Nov 02, 2017 Jkt 000000 (iii) of section (677563 19) PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 10 1 2332b(g)(5)(B) of title 18, United 2 States Code, or activities in prepara- 3 tion therefore; and 4 ‘‘(bb) a failure or delay in access- 5 ing or disseminating the contents of 6 such communications would result in 7 harm to the national security. 8 ‘‘(v) In the case of consent provided 9 pursuant to paragraph (5). 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 g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 ON ELECTRONIC SUR- 17:01 Nov 02, 2017 Jkt 000000 as otherwise provided by law (677563 19) PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 11 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 ‘‘(A) RECORDS.—The Attorney General 10 shall retain records of queries of a collection of 11 communications acquired under subsection (a). 12 The heads of elements of the intelligence com- 13 munity that are not components of the Depart- 14 ment of Justice shall retain records of queries 15 of a collection of communications acquired 16 under subsection (a) that use a term identifying 17 a United States person. 18 ‘‘(B) REQUIREMENTS.—Records retained 19 under subparagraph (A) shall— 20 ‘‘(i) include queries for not less than 21 5 years after the date on which the query 22 is made; and 23 ‘‘(ii) be maintained in a manner that 24 is auditable and available for congressional 25 oversight. g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 OF AUDITABLE RECORDS.— 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 12 1 ‘‘(4) COMPLIANCE AND MAINTENANCE.—The 2 requirements of this subsection do not apply with re- 3 spect to queries made for the purpose of— 4 ‘‘(A) submitting to Congress information 5 required by this Act or otherwise ensuring com- 6 pliance with the requirements of this section; or 7 ‘‘(B) performing maintenance or testing of 8 information systems. 9 ‘‘(5) CONSENT.—The requirements of this sub- 10 section do not apply with respect to— 11 ‘‘(A) queries made using a term identifying 12 a person who is a party to the communications 13 acquired under subsection (a), or a person who 14 otherwise has lawful authority to provide con- 15 sent, and who consents to such queries; or 16 ‘‘(B) the accessing or the dissemination of 17 the contents of communications acquired under 18 subsection (a) of a person who is a party to the 19 communications, or a person who otherwise has 20 lawful authority to provide consent, and who 21 consents to such access or dissemination.’’. 22 (b) PROCEDURES.—Subsection (e) of such section 23 (50 U.S.C. 1881a(e)) is amended by adding at the end 24 the following new paragraph: g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 13 1 ‘‘(3) CERTAIN PROCEDURES FOR QUERYING.— 2 The minimization procedures adopted in accordance 3 with paragraph (1) shall describe a query permitted 4 under subsection (j)(2)(D)(i).’’. 5 (c) LIMITATION ON USE OF CERTAIN EXCEPTED 6 QUERIED INFORMATION.—Section 706(a) (50 U.S.C. 7 1881e(a)) is amended— 8 9 (1) by striking ‘‘Information acquired’’ and inserting the following: 10 ‘‘(1) IN 11 (2) by adding at the end the following: 12 ‘‘(2) LIMITATION acquired’’; and ON USE OF CERTAIN EX- 13 CEPTED QUERIED INFORMATION.—No information 14 accessed to 15 702(j)(2)(D)(iv), or evidence derived therefrom, may 16 be received in evidence or otherwise used pursuant 17 to paragraph (1), except— 18 or disseminated pursuant section ‘‘(A) with the prior approval of the Attor- 19 ney General; and 20 ‘‘(B) in a proceeding or investigation in 21 which the information or evidence is directly re- 22 lated to and necessary to address a specific 23 threat of— 24 ‘‘(i) an act of terrorism specified in 25 clauses g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 GENERAL.—Information 17:01 Nov 02, 2017 Jkt 000000 (i) through (iii) of section (677563 19) PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 14 1 2332b(g)(5)(B) of title 18, United States 2 Code; 3 ‘‘(ii) espionage (as used in chapter 37 4 of title 18, United States Code); 5 ‘‘(iii) proliferation or use of a weapon 6 of mass destruction (as defined in section 7 2332a(c) of title 18, United States Code); 8 ‘‘(iv) a cybersecurity threat (as de- 9 fined in section 101(5) of the 10 Cybersecurity Information Sharing Act of 11 2015 (6 U.S.C. 1501(5)) from a foreign 12 country; 13 ‘‘(v) incapacitation or destruction of 14 critical infrastructure (as defined in section 15 1016(e) of the USA PATRIOT Act (42 16 U.S.C. 5195c(e))); or 17 ‘‘(vi) a threat to the armed forces of 18 the United States or an ally of the United 19 States or to other personnel of the United 20 States Government or a government of an 21 ally of the United States.’’. 22 (d) CONFORMING AMENDMENT.—Subsection 23 (g)(2)(B) of such section (50 U.S.C. 1881a(g)(2)(B)) is 24 amended by striking ‘‘and (e)’’ and inserting ‘‘(e), and 25 (j)’’. g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 15 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 g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 DILIGENCE.—The 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 16 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.— 6 ‘‘(A) IN the period 7 preceding September 30, 2023, the procedures 8 adopted in accordance with paragraph (1) shall 9 require that the targeting of a person is limited 10 to communications to or from the targeted per- 11 son. 12 ‘‘(B) ANNUAL REPORT.—On an annual 13 basis during the period specified in subpara- 14 graph (A), the Attorney General shall submit to 15 the congressional intelligence committees and 16 the Committees on the Judiciary of the House 17 of Representatives and the Senate a report 18 on— 19 ‘‘(i) any difficulty relating to the limi- 20 tation under such subparagraph; and 21 ‘‘(ii) during the period of such limita- 22 tion, the technical feasibility of ensuring 23 that the handling of communications ac- 24 quired under subsection (a) with respect to 25 incidentally collected United States person g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 GENERAL.—During 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 17 1 information complies with the minimization 2 procedures adopted under subsection (e).’’. 3 (b) MINIMIZATION PROCEDURES.—Subsection (e) of 4 such section (50 U.S.C. 1881a(e)), as amended by section 5 101, is further amended— 6 (1) in paragraph (1), by inserting ‘‘, and the re- 7 quirements of this subsection’’ before the period at 8 the end; and 9 10 (2) by adding at the end the following new paragraph: 11 ‘‘(4) REQUESTS 12 The procedures adopted under paragraph (1) shall 13 include specific procedures adopted by the Attorney 14 General for elements of the Federal Government to 15 submit requests to unmask information in dissemi- 16 nated intelligence reports. Such specific procedures 17 shall— 18 ‘‘(A) require the documentation of the re- 19 questing individual that such request is for le- 20 gitimate reasons authorized pursuant to para- 21 graph (1); and 22 ‘‘(B) require the retention of the records of 23 each request, including— 24 ‘‘(i) a copy of the request; g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 TO UNMASK INFORMATION.— 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 18 1 ‘‘(ii) the name and position of the in- 2 dividual who is making the request; and 3 ‘‘(iii) if the request is approved, the 4 name and position of the individual who 5 approved the request and the date of the 6 approval.’’. 7 (c) UNMASK DEFINED.—Section 701(b) (50 U.S.C. 8 1881(b)) is amended by adding at the end the following 9 new paragraph: 10 ‘‘(6) UNMASK.—The term ‘unmask’ means, 11 with respect to a disseminated intelligence report 12 containing a reference to a United States person 13 that does not identify that person (including by 14 name or title), to disseminate the identity of the 15 United States person, including the name or title of 16 the person.’’. 17 (d) CONSISTENT 18 RECORDS ON REQUESTS REQUIREMENTS TO TO RETAIN UNMASK INFORMATION.— 19 The Foreign Intelligence Surveillance Act of 1978 (50 20 U.S.C. 1801 et seq.) is amended as follows: 21 (1) In section 101(h) (50 U.S.C. 1801(h))— 22 (A) in paragraph (3), by striking ‘‘; and’’ 23 and inserting a semicolon; 24 (B) in paragraph (4), by striking the pe- 25 riod at the end and inserting ‘‘; and’’; and g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 19 1 (C) by adding at the end the following new 2 paragraph: 3 ‘‘(5) specific procedures as described in section 4 702(e)(4).’’. 5 (2) In section 301(4) (50 U.S.C. 1821(4))— 6 (A) in subparagraph (C), by striking ‘‘; 7 and’’ and inserting a semicolon; 8 (B) in subparagraph (D), by striking the 9 period at the end and inserting ‘‘; and’’; and 10 (C) by adding at the end the following new 11 subparagraph: 12 ‘‘(E) specific procedures as described in 13 section 702(e)(4).’’. 14 (3) In section 402(h) (50 U.S.C. 1842(h))— 15 (A) by redesignating paragraph (2) as 16 paragraph (3); and 17 (B) by inserting after paragraph (1) the 18 following new paragraph (2): 19 ‘‘(2) REQUESTS FOR NONPUBLICLY AVAILABLE 20 INFORMATION.—The policies and procedures adopt- 21 ed under paragraph (1) shall include specific proce- 22 dures as described in section 702(e)(4).’’. 23 24 (4) 17:01 Nov 02, 2017 section 501(g)(2) (50 U.S.C. 1861(g)(2))— g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 In Jkt 000000 (677563 19) PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 20 1 (A) in subparagraph (B), by striking ‘‘; 2 and’’ and inserting a semicolon; 3 (B) in subparagraph (C), by striking the 4 period at the end and inserting ‘‘; and’’; and 5 (C) by adding at the end the following new 6 subparagraph: 7 ‘‘(D) specific procedures as described in 8 9 section 702(e)(4).’’. (e) REPORT ON UNMASKING.—Not later than 90 10 days after the date of the enactment of this Act, the Direc11 tor of National Intelligence shall submit to the Permanent 12 Select Committee on Intelligence of the House of Rep13 resentatives, the Select Committee on Intelligence of the 14 Senate, and the Committees on the Judiciary of the House 15 of Representatives and the Senate a report on the progress 16 made by the Director with respect to— 17 (1) ensuring that incidentally collected commu- 18 nications of United States persons are properly 19 masked if masking is necessary; and 20 (2) implementing procedures for requests to 21 unmask information under section 702(e)(4) of such 22 Act (50 U.S.C. 1881a(e)(4)), as added by subsection 23 (c). g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 21 1 SEC. 103. PUBLICATION OF MINIMIZATION PROCEDURES 2 UNDER SECTION 702. 3 Subsection (e) of section 702 (50 U.S.C. 1881a(e)), 4 as amended by sections 101 and 102, is further amended 5 by adding at the end the following new paragraph: 6 ‘‘(5) PUBLICATION.—The Director of National 7 Intelligence, in consultation with the Attorney Gen- 8 eral, shall— 9 ‘‘(A) conduct a declassification review of 10 any minimization procedures adopted or amend- 11 ed in accordance with paragraph (1); and 12 ‘‘(B) consistent with such review, and not 13 later than 180 days after conducting such re- 14 view, make such minimization procedures pub- 15 licly available to the greatest extent practicable, 16 which may be in redacted form.’’. 17 SEC. 104. APPOINTMENT OF AMICUS CURIAE FOR ANNUAL 18 19 CERTIFICATIONS. Section 103(i) (50 U.S.C. 1803(i)(2)) is amended— 20 (1) in paragraph (2)— 21 (A) in subparagraph (A), by striking ‘‘; 22 and’’ and inserting a semicolon; 23 (B) by redesignating subparagraph (B) as 24 subparagraph (C); and 25 (C) by inserting after subparagraph (A) 26 the following new subparagraph (B): g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 22 1 ‘‘(B) shall appoint an individual who has 2 been designated under paragraph (1) to serve 3 as amicus curiae to assist such court in the re- 4 view of a certification under section 702(i), un- 5 less the court issues a finding that such ap- 6 pointment is not necessary; and’’; and 7 (2) in paragraphs (4) and (5), by striking 8 ‘‘paragraph (2)(A)’’ both places it appears and in- 9 serting ‘‘subparagraph (A) or (B) of paragraph (2)’’. 10 SEC. 105. INCREASED ACCOUNTABILITY ON INCIDENTALLY 11 COLLECTED COMMUNICATIONS. 12 Section 707 (50 U.S.C. 1881f) is amended by adding 13 at the end the following new subsection: 14 15 ‘‘(c) INCIDENTALLY COLLECTED COMMUNICATIONS OTHER INFORMATION.—Together with the semi- AND 16 annual report submitted under subsection (a), the Direc17 tor of National Intelligence shall submit to the congres18 sional committees specified in such subsection a report on 19 incidentally collected communications and other informa20 tion regarding United States persons under section 702. 21 Each such report shall include, with respect to the 622 month period covered by the report, the following: 23 ‘‘(1) Except as provided by paragraph (2), the 24 number, or a good faith estimate, of communications 25 acquired under subsection (a) of such section of g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 23 1 United States persons, including a description of any 2 efforts of the intelligence community to ascertain 3 such number or good faith estimate. 4 ‘‘(2) If the Director determines that the num- 5 ber, or a good faith estimate, under paragraph (1) 6 is not achievable, a detailed explanation for why 7 such number or good faith estimate is not achiev- 8 able. 9 ‘‘(3) The number of— 10 ‘‘(A) United States persons whose informa- 11 tion is unmasked pursuant to the procedures 12 adopted under subsection (e)(4) of such section; 13 ‘‘(B) requests made by an element of the 14 Federal Government, listed by each such ele- 15 ment, to unmask information pursuant to such 16 subsection; and 17 ‘‘(C) requests that resulted in the dissemi- 18 nation of names, titles, or other identifiers po- 19 tentially associated with individuals pursuant to 20 such subsection, including the element of the in- 21 telligence community and position of the indi- 22 vidual making the request. 23 ‘‘(4) The number of disseminations of commu- 24 nications acquired under subsection (a) of section g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 24 1 702 to the Federal Bureau of Investigation for cases 2 unrelated to foreign intelligence. 3 ‘‘(5) The number of instances in which evidence 4 of a crime unrelated to foreign intelligence that was 5 identified in communications acquired under sub- 6 section (a) of section 702 was disseminated from the 7 national security branch of the Bureau to the crimi- 8 nal investigative division of the Bureau (or from 9 such successor branch to such successor division). 10 ‘‘(6) The number of individuals to whom the 11 Attorney General has delegated authority pursuant 12 to subsection (j)(2)(G) of section 702.’’. 13 SEC. 106. SEMIANNUAL REPORTS ON CERTAIN QUERIES BY 14 15 FEDERAL BUREAU OF INVESTIGATION. Section 707 (50 U.S.C. 1881f), as amended by sec- 16 tion 105, is further amended by adding at the end the 17 following new subsection: 18 ‘‘(d) SEMIANNUAL FBI REPORTS.—Together with 19 the semiannual report submitted under subsection (a), the 20 Director of the Federal Bureau of Investigation shall sub21 mit to the congressional committees specified in such sub22 section, and make publicly available, a report containing, 23 with respect to the period covered by the report— g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 25 1 ‘‘(1) the number of applications made by the 2 Federal Bureau of Investigation described in sub- 3 section (j)(2)(A) of section 702; 4 ‘‘(2) the number of such applications that were 5 approved and resulted in communications being 6 accessed or disseminated pursuant to such sub- 7 section; and 8 ‘‘(3) the number of supervisory approvals made 9 10 pursuant to subsection (j)(2)(C) of such section.’’. SEC. 107. ADDITIONAL REPORTING REQUIREMENTS. 11 (a) ELECTRONIC SURVEILLANCE.—Section 107 (50 12 U.S.C. 1807) is amended to read as follows: 13 ‘‘SEC. 107. REPORT OF ELECTRONIC SURVEILLANCE. 14 ‘‘(a) ANNUAL REPORT.—In April of each year, the 15 Attorney General shall transmit to the Administrative Of16 fice of the United States Courts and to Congress a report 17 setting forth with respect to the preceding calendar year— 18 ‘‘(1) the total number of applications made for 19 orders and extensions of orders approving electronic 20 surveillance under this title; 21 22 ‘‘(2) the total number of such orders and extensions either granted, modified, or denied; and 23 ‘‘(3) the total number of persons who were sub- 24 ject to electronic surveillance conducted under an 25 order or emergency authorization under this title, g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 26 1 rounded to the nearest 500, including the number of 2 such individuals who are United States persons, re- 3 ported to the nearest band of 500, starting with 0– 4 499. 5 ‘‘(b) FORM.—Each report under subsection (a) shall 6 be submitted in unclassified form. Not later than 7 days 7 after the date on which the Attorney General submits each 8 such report, the Attorney General shall make the report 9 publicly available.’’. 10 11 (b) PEN REGISTERS VICES.—Section 12 TRAP AND TRACE DE- 406 (50 U.S.C. 1846) is amended— (1) in subsection (b)— 13 (A) in paragraph (4), by striking ‘‘; and’’ 14 and inserting a semicolon; 15 (B) in paragraph (5), by striking the pe- 16 riod at the end and inserting ‘‘; and’’; and 17 (C) by adding at the end the following new 18 paragraph: 19 ‘‘(6) a good faith estimate of the total number 20 of subjects who were targeted by the installation and 21 use of a pen register or trap and trace device under 22 an order or emergency authorization issued under 23 this title, rounded to the nearest 500, including— g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 AND 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 27 1 ‘‘(A) the number of such subjects who are 2 United States persons, reported to the nearest 3 band of 500, starting with 0–499; and 4 ‘‘(B) of the number of United States per- 5 sons described in subparagraph (A), the num- 6 ber of persons whose information acquired pur- 7 suant to such order was reviewed or accessed by 8 a Federal officer, employee, or agent, reported 9 to the nearest band of 500, starting with 0– 10 499.’’; and 11 (2) by adding at the end the following new sub- 12 section: 13 ‘‘(c) Each report under subsection (b) shall be sub- 14 mitted in unclassified form. Not later than 7 days after 15 the date on which the Attorney General submits such a 16 report, the Attorney General shall make such report pub17 licly available.’’. 18 SEC. 108. APPLICATION OF CERTAIN AMENDMENTS. 19 The amendments made by sections 101 and 102 of 20 the Foreign Intelligence Surveillance Act of 1978 (50 21 U.S.C. 1801 et seq.) shall apply with respect to applica22 tions, certifications, and procedures submitted to the For23 eign Intelligence Surveillance Court on or after the date 24 that is 120 days after the date of the enactment of this 25 Act. g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 28 1 SEC. 109. SENSE OF CONGRESS ON PURPOSE OF SECTION 2 702 AND RESPECTING FOREIGN NATIONALS. 3 It is the sense of Congress that— 4 (1) the acquisition of communications by the 5 National Security Agency under section 702 of the 6 Foreign Intelligence Surveillance Act (50 U.S.C. 7 1881a) should be conducted within the bounds of 8 treaties and agreements to which the United States 9 is a party, and there should be no targeting of non- 10 United States persons for any unfounded discrimina- 11 tory purpose or for the purpose of affording a com- 12 mercial competitive advantage to companies and 13 business sectors of the United States; and 14 (2) the authority to collect intelligence under 15 such section 702 is meant to shield the United 16 States, and by extension, the allies of the United 17 States, from security threats both at home and 18 abroad. 21 TITLE II—SAFEGUARDS AND OVERSIGHT OF PRIVACY AND CIVIL LIBERTIES 22 SEC. 201. LIMITATION ON RETENTION OF CERTAIN DATA. 19 20 23 Subsection (m) of section 702 (50 U.S.C. 1881a), as 24 redesignated by section 101, is amended— 25 26 (1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4); and g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 29 1 (2) by inserting after paragraph (1) the fol- 2 lowing new paragraph (2): 3 ‘‘(2) AFFIDAVIT ON DELETION INCLUDED IN 4 SEMIANNUAL ASSESSMENT 5 GRESS.—Each semiannual assessment under para- 6 graph (1) shall include, with respect to the 6-month 7 period covered by the assessment, an affidavit by the 8 Director of the National Security Agency, without 9 delegation, that communications acquired under sub- 10 section (a) determined not to contain foreign intel- 11 ligence information, if any, were deleted.’’. 12 TO FISC AND CON- SEC. 202. IMPROVEMENTS TO PRIVACY AND CIVIL LIB- 13 14 ERTIES OVERSIGHT BOARD. (a) APPOINTMENT OF STAFF.—Subsection (j) of sec- 15 tion 1061 of the Intelligence Reform and Terrorism Pre16 vention Act of 2004 (42 U.S.C. 2000ee(j)) is amended— 17 18 (1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and 19 20 (2) by inserting after paragraph (1) the following new paragraph: 21 ‘‘(2) APPOINTMENT 22 MAN.—If 23 vacant, during the period of the vacancy, the Board, 24 at the direction of the unanimous vote of the serving g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 IN ABSENCE OF CHAIR- 17:01 Nov 02, 2017 Jkt 000000 the position of chairman of the Board is (677563 19) PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 30 1 members of the Board, may exercise the authority of 2 the chairman under paragraph (1).’’. 3 (b) MEETINGS.—Subsection (f) of such section (42 4 U.S.C. 2000ee(f)) is amended— 5 6 (1) by striking ‘‘The Board shall’’ and inserting ‘‘The Board’’; 7 8 (2) in paragraph (1) by striking ‘‘make its’’ and inserting ‘‘shall make its’’; and 9 (3) in paragraph (2)— 10 (A) by striking ‘‘hold public’’ and inserting 11 ‘‘shall hold public’’; and 12 (B) by inserting before the period at the 13 end the following: ‘‘, but may, notwithstanding 14 section 552b of title 5, United States Code, 15 meet or otherwise communicate in any number 16 to confer or deliberate in a manner that is 17 closed to the public’’. 18 (c) REPORT ON SECTION 702 AND TERRORISM.—Not 19 later than 1 year after the date on which the Privacy and 20 Civil Liberties Oversight Board first achieves a quorum 21 following the date of the enactment of this Act, the Board 22 shall submit to the Committee on the Judiciary and the 23 Permanent Select Committee on Intelligence of the House 24 of Representatives and the Committee on the Judiciary g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 31 1 and the Select Committee on Intelligence of the Senate 2 a report assessing— 3 (1) how communications acquired under section 4 702 of the of the Foreign Intelligence Surveillance 5 Act of 1978 (50 U.S.C. 1881a) are used by the 6 United States to prevent or defend against ter- 7 rorism; 8 (2) whether technological challenges and 9 changes in technology affect the prevention of and 10 defense against terrorism, and how effectively the 11 foreign intelligence elements of the intelligence com- 12 munity have responded to those challenges; and 13 (3) how privacy and civil liberties are affected 14 by the actions identified under paragraph (1) and 15 the changes in technology identified under para- 16 graph (2), and whether race, religion, political affili- 17 ation, or activities protected by the First Amend- 18 ment are determinative in the targeting or querying 19 decisions made pursuant to such section 702. 20 SEC. 203. PRIVACY AND CIVIL LIBERTIES OFFICERS. 21 (a) CODIFICATION OF CERTAIN OFFICERS.—Section 22 1062(a) of the Intelligence Reform and Terrorism Preven23 tion Act of 2004 (42 U.S.C. 2000ee–1(a)) is amended by 24 inserting ‘‘, the Director of the National Security Agency, g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 32 1 the Director of the Federal Bureau of Investigation’’ after 2 ‘‘the Director of the Central Intelligence Agency’’. 3 4 (b) ANNUAL REPORTS TIONS OF ON INCIDENTAL COMMUNICA- UNITED STATES PERSONS.—Paragraph (4)(A) 5 of subsection (m) of section 702 (50 U.S.C. 1881a), as 6 redesignated by sections 101 and 201, is amended— 7 (1) in clause (iii), by striking ‘‘; and’’ and in- 8 serting a semicolon; 9 (2) in clause (iv), by striking the period at the 10 end and inserting ‘‘; and’’; and 11 (3) by adding at the end the following new 12 clause: 13 ‘‘(v) a review by the privacy and civil 14 liberties officer of the element of inciden- 15 tally collected communications of United 16 States persons to assess compliance with 17 the minimization procedures adopted under 18 subsection (e) and the effect of this section 19 on the privacy of United States persons.’’. 20 SEC. 204. WHISTLEBLOWER PROTECTIONS FOR CONTRAC- 21 TORS OF THE INTELLIGENCE COMMUNITY. 22 23 (a) PROHIBITED PERSONNEL PRACTICES TELLIGENCE IN THE IN- COMMUNITY.—Section 1104 of the National 24 Security Act of 1947 (50 U.S.C. 3234) is amended— g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 33 1 2 (1) in subsection (a), by adding at the end the following new paragraph: 3 ‘‘(4) CONTRACTOR EMPLOYEE.—The term ‘con- 4 tractor employee’ means an employee of a con- 5 tractor, subcontractor, grantee, subgrantee, or per- 6 sonal services contractor, of a covered intelligence 7 community element.’’; 8 9 (2) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; 10 (3) by inserting after subsection (b) the fol- 11 lowing new subsection (c): 12 ‘‘(c) CONTRACTOR EMPLOYEES.—(1) Any employee 13 of a contractor, subcontractor, grantee, subgrantee, or 14 personal services contractor, of a covered intelligence com15 munity element, or any employee of an agency, who has 16 authority to take, direct others to take, recommend, or ap17 prove any personnel action, shall not, with respect to such 18 authority, take or fail to take a personnel action with re19 spect to any contractor employee as a reprisal for a lawful 20 disclosure of information by the contractor employee to 21 the Director of National Intelligence (or an employee des22 ignated by the Director of National Intelligence for such 23 purpose), the Inspector General of the Intelligence Com24 munity, the head of the contracting agency (or an em25 ployee designated by the head of that agency for such pur- g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 34 1 pose), the appropriate inspector general of the contracting 2 agency, a congressional intelligence committee, or a mem3 ber of a congressional intelligence committee, which the 4 contractor employee reasonably believes evidences— 5 ‘‘(A) a violation of any Federal law, rule, or 6 regulation (including with respect to evidence of an- 7 other employee or contractor employee accessing or 8 sharing classified information without authoriza- 9 tion); or 10 ‘‘(B) mismanagement, a gross waste of funds, 11 an abuse of authority, or a substantial and specific 12 danger to public health or safety. 13 ‘‘(2) A personnel action under paragraph (1) is pro- 14 hibited even if the action is undertaken at the request of 15 an agency official, unless the request takes the form of 16 a nondiscretionary directive and is within the authority of 17 the agency official making the request. 18 ‘‘(3) A contractor employee may raise a violation of 19 paragraph (1) in any proceeding to implement or challenge 20 a personnel action described in such paragraph.’’; 21 22 (4) in subsection (b), by striking the heading and inserting ‘‘AGENCY EMPLOYEES.—’’; and 23 (5) in subsection (e), as redesignated by para- 24 graph (2), by inserting ‘‘contractor employee,’’ after 25 ‘‘any employee,’’. g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 35 1 (b) FEDERAL BUREAU OF INVESTIGATION.— 2 (1) IN employee of a con- 3 tractor, subcontractor, grantee, subgrantee, or per- 4 sonal services contractor, of the Federal Bureau of 5 Investigation, or any employee of the Bureau, who 6 has authority to take, direct others to take, rec- 7 ommend, or approve any personnel action, shall not, 8 with respect to such authority, take or fail to take 9 a personnel action with respect to a contractor em- 10 ployee as a reprisal for a disclosure of information— 11 (A) made— 12 (i) to a supervisor in the direct chain 13 of command of the contractor employee, up 14 to and including the Director of the Fed- 15 eral Bureau of Investigation; 16 (ii) to the Inspector General; 17 (iii) to the Office of Professional Re- 18 sponsibility of the Department of Justice; 19 (iv) to the Office of Professional Re- 20 sponsibility of the Federal Bureau of In- 21 vestigation; 22 (v) to the Inspection Division of the 23 Federal Bureau of Investigation; 24 (vi) as described in section 7211 of 25 title 5, United States Code; g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 GENERAL.—Any 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 36 1 (vii) to the Office of Special Counsel; 2 or 3 (viii) to an employee designated by 4 any officer, employee, office, or division de- 5 scribed in clauses (i) through (vii) for the 6 purpose of receiving such disclosures; and 7 (B) which the contractor employee reason- 8 ably believes evidences— 9 (i) any violation of any law, rule, or 10 regulation (including with respect to evi- 11 dence of another employee or contractor 12 employee accessing or sharing classified in- 13 formation without authorization); or 14 (ii) gross mismanagement, a gross 15 waste of funds, an abuse of authority, or 16 a substantial and specific danger to public 17 health or safety. 18 (2) ACTIONS personnel action 19 under paragraph (1) is prohibited even if the action 20 is undertaken at the request of an official of the Bu- 21 reau, unless the request takes the form of a nondis- 22 cretionary directive and is within the authority of 23 the official making the request. 24 (3) VIOLATION.—A contractor employee may 25 raise a violation of paragraph (1) in any proceeding g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 BY REQUEST.—A 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 37 1 to implement or challenge a personnel action de- 2 scribed in such paragraph. 3 (4) REGULATIONS.—The Attorney General shall 4 prescribe regulations to ensure that a personnel ac- 5 tion described in paragraph (1) shall not be taken 6 against a contractor employee of the Bureau as a re- 7 prisal for any disclosure of information described in 8 subparagraph (A) of such paragraph. 9 (5) ENFORCEMENT.—The President shall pro- 10 vide for the enforcement of this subsection in a man- 11 ner consistent with applicable provisions of sections 12 1214 and 1221 of title 5, United States Code. 13 (6) DEFINITIONS.—In this subsection: 14 (A) term ‘‘contractor employee’’ 15 means an employee of a contractor, subcon- 16 tractor, grantee, subgrantee, or personal serv- 17 ices contractor, of the Federal Bureau of Inves- 18 tigation. 19 (B) The term ‘‘personnel action’’ means 20 any action described in clauses (i) through (x) 21 of section 2302(a)(2)(A) of title 5, United 22 States Code, with respect to a contractor em- 23 ployee. 24 (c) RETALIATORY 25 CLEARANCES g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 The 17:01 Nov 02, 2017 Jkt 000000 AND REVOCATION OF SECURITY ACCESS DETERMINATIONS.—Section (677563 19) PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 38 1 3001(j) of the Intelligence Reform and Terrorism Preven2 tion Act of 2004 (50 U.S.C. 3341(j)) is amended by add3 ing at the end the following new paragraph: 4 ‘‘(8) INCLUSION OF CONTRACTOR EMPLOY- 5 EES.—In 6 cludes an employee of a contractor, subcontractor, 7 grantee, subgrantee, or personal services contractor, 8 of an agency. With respect to such employees, the 9 term ‘employing agency’ shall be deemed to be the 10 this subsection, the term ‘employee’ in- contracting agency.’’. 14 TITLE III—EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND OTHER MATTERS 15 SEC. 301. EXTENSION OF TITLE VII OF FISA; EFFECTIVE 11 12 13 16 17 DATES. (a) EXTENSION.—Section 403(b) of the FISA 18 Amendments Act of 2008 (Public Law 110–261; 122 Stat. 19 2474) is amended— 20 (1) in paragraph (1)— 21 (A) by striking ‘‘December 31, 2017’’ and 22 inserting ‘‘September 30, 2023’’; and 23 (B) by inserting ‘‘and by the USA Liberty 24 Act of 2017’’ after ‘‘section 101(a)’’; and g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 39 1 (2) in paragraph (2) in the matter preceding 2 subparagraph (A), by striking ‘‘December 31, 2017’’ 3 and inserting ‘‘September 30, 2023’’. 4 (b) CONFORMING AMENDMENTS.—Section 404(b) of 5 the FISA Amendments Act of 2008 (Public Law 110–261; 6 122 Stat. 2476) is amended— 7 (1) in paragraph (1)— 8 (A) in the heading, by striking ‘‘DECEM- 9 BER 31, 2017’’ 10 2023’’; 11 30, and (B) by inserting ‘‘and by the USA Liberty 12 Act of 2017’’ after ‘‘section 101(a)’’; 13 (2) in paragraph (2), by inserting ‘‘and by the 14 USA Liberty Act of 2017’’ after ‘‘section 101(a)’’; 15 and 16 (3) in paragraph (4)— 17 (A) by striking ‘‘702(l)’’ each place it ap- 18 pears and inserting ‘‘702(m)’’; 19 (B) by inserting ‘‘and amended by the 20 USA Liberty Act of 2017’’ after ‘‘as added by 21 section 101(a)’’ both places it appears; and 22 (C) by inserting ‘‘and by the USA Liberty 23 Act of 2017’’ after ‘‘as amended by section 24 101(a)’’ both places it appears. g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 and inserting ‘‘SEPTEMBER 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 40 1 (c) EFFECTIVE DATE OF AMENDMENTS TO FAA.— 2 The amendments made to the FISA Amendments Act of 3 2008 (Public Law 110–261) by this section shall take ef4 fect on the earlier of the date of the enactment of this 5 Act or December 31, 2017. 6 SEC. 302. INCREASED PENALTY FOR UNAUTHORIZED RE- 7 MOVAL AND RETENTION OF CLASSIFIED DOC- 8 UMENTS OR MATERIAL. 9 Section 1924(a) of title 18, United States Code, is 10 amended by striking ‘‘one year’’ and inserting ‘‘five 11 years’’. 12 SEC. 303. COMPTROLLER GENERAL STUDY ON UNAUTHOR- 13 IZED DISCLOSURES AND THE CLASSIFICA- 14 TION SYSTEM. 15 (a) STUDY.—The Comptroller General of the United 16 States shall conduct a study of the unauthorized disclosure 17 of classified information and the classification system of 18 the United States. 19 (b) MATTERS INCLUDED.—The study under sub- 20 section (a) shall address the following: 21 22 (1) Insider threat risks to the unauthorized disclosure of classified information. 23 (2) The effect of modern technology on the un- 24 authorized disclosure of classified information, in- 25 cluding with respect to— g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 41 1 (A) using cloud storage for classified infor- 2 mation; and 3 (B) any technological means to prevent or 4 detect such unauthorized disclosure. 5 (3) The effect of overclassification on the unau- 6 thorized disclosure of classified information. 7 (4) Any ways to improve the classification sys- 8 tem of the United States, including with respect to 9 changing the levels of classification used in such sys- 10 tem and to reduce overclassification. 11 (5) How to improve the authorized sharing of 12 classified information, including with respect to sen- 13 sitive compartmented information. 14 15 (6) The value of polygraph tests in determining who is authorized to access classified information. 16 (7) Whether each element of the intelligence 17 community (as defined in section 3(4) of the Na- 18 tional Security Act of 1947 (50 U.S.C. 3003(4)))— 19 (A) applies uniform standards in deter- 20 mining who is authorized to access classified in- 21 formation; and 22 (B) provides proper training with respect 23 to the handling of classified information and 24 the avoidance of overclassification. g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 42 1 (c) COOPERATION.—The heads of the intelligence 2 community shall provide to the Comptroller General infor3 mation the Comptroller General determines necessary to 4 carry out the study under subsection (a). 5 (d) REPORT.—Not later than 180 days after the date 6 of the enactment of this Act, the Comptroller General shall 7 submit to the Committee on the Judiciary and the Perma8 nent Select Committee on Intelligence of the House of 9 Representatives and the Committee on the Judiciary and 10 the Select Committee on Intelligence of the Senate a re11 port containing the study under subsection (a). 12 (e) FORM.—The report under subsection (d) shall be 13 submitted in unclassified form, but may include a classi14 fied annex. 15 SEC. 304. SENSE OF CONGRESS ON INFORMATION SHARING 16 AMONG INTELLIGENCE COMMUNITY TO PRO- 17 TECT NATIONAL SECURITY. 18 It is the sense of Congress that, in carrying out sec- 19 tion 702 of the Foreign Intelligence Surveillance Act of 20 1978 (50 U.S.C. 1881a), as amended by this Act, the 21 United States Government should ensure that the bar22 riers, whether real or perceived, to sharing critical foreign 23 intelligence among the intelligence community that existed 24 before September 11, 2001, are not reimposed by sharing 25 information vital to national security among the intel- g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 43 1 ligence community in a manner that is consistent with 2 such section, applicable provisions of law, and the Con3 stitution of the United States. 4 SEC. 305. SENSE OF CONGRESS ON COMBATING TER- 5 RORISM. 6 It is the sense of Congress that, consistent with the 7 protection of sources and methods, when lawful and ap8 propriate, the President should share information learned 9 by acquiring communications under section 702 of the 10 Foreign Intelligence Surveillance Act (50 U.S.C. 1881a) 11 with allies of the United States to prevent and defend 12 against terrorism. 13 SEC. 306. TECHNICAL AMENDMENTS AND AMENDMENTS TO 14 IMPROVE PROCEDURES OF THE FOREIGN IN- 15 TELLIGENCE SURVEILLANCE COURT OF RE- 16 VIEW. 17 (a) TECHNICAL AMENDMENTS.—The Foreign Intel- 18 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 19 is amended as follows: 20 (1) In section 103(b) (50 U.S.C. 1803(b)), by 21 striking ‘‘designate as the’’ and inserting ‘‘des- 22 ignated as the’’. 23 (2) In section 302(a)(1)(A)(iii) (50 U.S.C. 24 1822(a)(1)(A)(iii)), by striking ‘‘paragraphs (1) g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 44 1 through (4)’’ and inserting ‘‘subparagraphs (A) 2 through (D)’’. 3 (3) In section 406(b) (50 U.S.C. 1846(b)), by 4 striking ‘‘and to the Committees on the Judiciary of 5 the House of Representatives and the Senate’’. 6 (4) In section 604(a) (50 U.S.C. 1874(a))— 7 (A) in paragraph (1)(D), by striking ‘‘con- 8 tents’’ and inserting ‘‘contents,’’; and 9 (B) in paragraph (3), by striking ‘‘comply 10 in the into’’ and inserting ‘‘comply into’’. 11 (5) In section 701 (50 U.S.C. 1881)— 12 (A) in subsection (a), by striking ‘‘The 13 terms’’ and inserting ‘‘In this title, the terms’’; 14 and 15 (B) in subsection (b)— 16 (i) by inserting ‘‘In this title:’’ after 17 the subsection heading; and 18 (ii) in paragraph (5), by striking ‘‘(50 19 U.S.C. 20 U.S.C. 3003(4))’’. and inserting ‘‘(50 21 (6) In section 702(g)(2)(A)(i) (50 U.S.C. 22 1881a(g)(2)(A)(i)), by inserting ‘‘targeting’’ before 23 ‘‘procedures in place’’. g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 401a(4))’’ 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 45 1 (7) 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 (b) COURT-RELATED AMENDMENTS.—The Foreign 5 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 6 seq.) is further amended as follows: 7 (1) In section 103 (50 U.S.C. 1803)— 8 (A) in subsection (b), by striking ‘‘imme- 9 diately’’; and 10 (B) in subsection (h), by striking ‘‘the 11 court established under subsection (a)’’ and in- 12 serting ‘‘a court established under this section’’. 13 (2) In section 105(d) (50 U.S.C. 1805(d)), by 14 adding at the end the following new paragraph: 15 ‘‘(4) A denial of the application made under section 16 104 may be reviewed as provided in section 103.’’. 17 18 (3) In section 302(d) (50 U.S.C. 1822(d)), by striking ‘‘immediately’’. 19 (4) In section 402(d) (50 U.S.C. 1842(d)), by 20 adding at the end the following new paragraph: 21 ‘‘(3) A denial of the application made under this sub- 22 section may be reviewed as provided in section 103.’’. 23 24 (5) In section 403(c) (50 U.S.C. 1843(c)), by adding at the end the following new paragraph: g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM G:\CMTE\JD\15\FISA\H3989_ANS.XML 46 1 ‘‘(3) A denial of the application made under sub- 2 section (a)(2) may be reviewed as provided in section 3 103.’’. 4 (6) In section 501(c) (50 U.S.C. 1861(c)), by 5 adding at the end the following new paragraph: 6 ‘‘(4) A denial of the application made under 7 this subsection may be reviewed as provided in sec- 8 tion 103.’’. 9 SEC. 307. SEVERABILITY. 10 If any provision of this Act, any amendment made 11 by this Act, or the application thereof to any person or 12 circumstances is held invalid, the validity of the remainder 13 of the Act, of any such amendments, and of the applica14 tion of such provisions to other persons and circumstances 15 shall not be affected thereby. ◊ g:\VHLC\110217\110217.276.xml November 2, 2017 (5:01 p.m.) VerDate 0ct 09 2002 17:01 Nov 02, 2017 Jkt 000000 (677563 19) PO 00000 Frm 00046 Fmt 6652 Sfmt 6301 C:\USERS\AJSCIA~1\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\H3989_~1.XM