BAG20644 S.L.C. AMENDMENT NO.llll Calendar No.lll Purpose: To provide additional protections. IN THE SENATE OF THE UNITED STATES—116th Cong., 2d Sess. H. R. 6172 To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the production of certain business records, and for other purposes. Referred to the Committee on llllllllll and ordered to be printed Ordered to lie on the table and to be printed AMENDMENT intended to be proposed by Mr. MCCONNELL Viz: 1 2 At the appropriate place, insert the following: SEC. lll. EXPANSION OF AMICUS PROVISIONS. 3 4 5 (a) MODIFICATION CUS TO APPOINT AMI- GENERAL.—Subparagraph (A) of section OF AUTHORITY CURIAE.— (1) IN 6 103(i)(2) (50 U.S.C. 1803(i)(2)), as amended by 7 section 302(a), is amended to read as follows: 8 ‘‘(A) shall appoint an individual who has 9 been designated under paragraph (1) to serve 10 as amicus curiae to assist such court in the 11 consideration of any application for an order or 12 review that, in the opinion of the court— BAG20644 S.L.C. 2 1 ‘‘(i) presents a novel or significant in- 2 terpretation of the law, unless the court 3 issues a finding that such appointment is 4 not appropriate; 5 ‘‘(ii) presents exceptional concerns 6 about the protection of the rights of a 7 United States person under the first 8 amendment to the Constitution, unless the 9 court issues a finding that such appoint- 10 ment is not appropriate; or 11 ‘‘(iii) presents or involves a sensitive 12 investigative matter, unless the court 13 issues a finding that such appointment is 14 not appropriate; and’’. 15 16 17 (2) DEFINITION OF SENSITIVE INVESTIGATIVE MATTER AND CAMPAIGN FOR FEDERAL OFFICE.— (A) TITLE I.—Section 101 (50 U.S.C. 18 1801), as amended by section 408(b), is further 19 amended by adding at the end the following: 20 ‘‘(s) ‘Sensitive investigative matter’, for purposes of 21 section 103(i)(2), means a matter with respect to an appli22 cation that targets a campaign for Federal office or an 23 application that targets a United States person when the 24 application relies for its criminal predicate on only the pro25 visions of the Foreign Agents Registration Act of 1938 BAG20644 S.L.C. 3 1 (22 U.S.C. 611 et seq.) or an act prohibited under section 2 371 of title 18, United States Code, consisting of a con3 spiracy to commit an offense under this Act. 4 ‘‘(t) ‘Campaign for Federal office’ includes the can- 5 didate, or a staff member or advisor of such candidate’s 6 campaign (including any person who has been publicly an7 nounced by such a campaign as a staffer or member of 8 an official campaign advisory committee or group).’’. 9 (B) TITLE III.—Section 301(1) (50 U.S.C. 10 1821(l)) is amended by striking ‘‘and ‘State’ ’’ 11 and inserting ‘‘ ‘State’, and ‘campaign for Fed- 12 eral office’ ’’. 13 (b) AUTHORITY TO SEEK REVIEW OF DECISIONS.— 14 Paragraph (7) of section 103(i) (50 U.S.C. 1803(i)), as 15 added by section 302(b), is amended to read as follows: 16 17 18 19 ‘‘(7) AUTHORITY TO SEEK REVIEW OF DECI- SIONS.— ‘‘(A) FISA COURT DECISIONS.— ‘‘(i) PETITION TO CERTIFY FOR RE- 20 VIEW.—Following 21 under this Act by the Foreign Intelligence 22 Surveillance Court, an amicus curiae ap- 23 pointed under paragraph (2) may petition 24 the Foreign Intelligence Surveillance Court 25 to certify for review to the Foreign Intel- issuance of an order BAG20644 S.L.C. 4 1 ligence Surveillance Court of Review a 2 question of law pursuant to subsection (j). 3 ‘‘(ii) WRITTEN STATEMENT UPON DE- 4 NIAL.—If 5 lance Court denies a petition under clause 6 (i), the court shall provide for the record 7 a written statement of the reasons for such 8 denial. 9 the Foreign Intelligence Surveil- ‘‘(iii) APPOINTMENT OF AMICUS CU- 10 RIAE FOR REVIEW.—Upon 11 any question of law pursuant to this sub- 12 paragraph, the Court of Review shall ap- 13 point the amicus curiae to assist the Court 14 of Review in its consideration of the cer- 15 tified question, unless the Court of Review 16 issues a finding that such appointment is 17 not appropriate. 18 ‘‘(B) FISA COURT OF certification of REVIEW DECI- 19 SIONS.—An 20 paragraph (2) may petition the Foreign Intel- 21 ligence Surveillance Court of Review to certify 22 for review to the Supreme Court of the United 23 States any question of law pursuant to section 24 1254(2) of title 28, United States Code. amicus curiae appointed under BAG20644 S.L.C. 5 1 ‘‘(C) DECLASSIFICATION OF ORDERS.—A 2 decision, order, or opinion of the Foreign Intel- 3 ligence Surveillance Court or the Foreign Intel- 4 ligence Surveillance Court of Review that denies 5 a petition under this paragraph shall be subject 6 to the declassification review required by section 7 602(a) to the extent the decision, order, or 8 opinion includes a significant construction or 9 interpretation of any provision of law.’’. 10 (c) ACCESS TO INFORMATION.—Subparagraph (A) of 11 section 103(i)(6) (50 U.S.C. 1803(i)(6)), as amended by 12 section 302(c), is amended to read as follows: 13 ‘‘(A) IN GENERAL.—If a court established 14 under subsection (a) or (b) appoints an amicus 15 curiae under paragraph (2), the amicus cu- 16 riae— 17 ‘‘(i) shall have access to the applica- 18 tion, certification, petition, and motion in 19 connection with the matter in which the 20 amicus curiae has been appointed, includ- 21 ing access to any relevant legal precedent 22 (including any such precedent that is cited 23 by the Government, including in such ap- 24 plication), subject to subparagraph (C); BAG20644 S.L.C. 6 1 ‘‘(ii) shall have access to any other in- 2 formation or materials that the court de- 3 termines are relevant to the duties of the 4 amicus curiae, subject to subparagraph 5 (C); and 6 ‘‘(iii) may make a submission to the 7 court requesting access to any particular 8 materials or information (or category of 9 materials or information) that the amicus 10 curiae believes to be relevant to the duties 11 of the amicus curiae.’’. 12 SEC. lll. ANNUAL REPORTING ON ACCURACY AND COM- 13 14 15 16 17 PLETENESS OF APPLICATIONS. Section 603 (50 U.S.C. 1873) is amended— (1) by redesignating subsection (e) as subsection (f); and (2) by inserting after subsection (d) the fol- 18 lowing: 19 ‘‘(e) ANNUAL REPORT 20 21 PLETENESS OF ON ACCURACY AND COM- APPLICATIONS.— ‘‘(1) DEFINITION OF APPROPRIATE COMMIT- 22 TEES OF CONGRESS.—In 23 ‘appropriate committees of Congress’ means— this subsection, the term BAG20644 S.L.C. 7 1 ‘‘(A) the Committee on the Judiciary and 2 the Select Committee on Intelligence of the 3 Senate; and 4 ‘‘(B) the Committee on the Judiciary and 5 the Permanent Select Committee on Intelligence 6 of the House of Representatives. 7 ‘‘(2) IN GENERAL.—In April of each year, the 8 Attorney General shall submit to the appropriate 9 committees of Congress a report setting forth, with 10 respect to the preceding calendar year, the following: 11 ‘‘(A) A summary of all accuracy or com- 12 pleteness reviews of applications submitted to 13 the Foreign Intelligence Surveillance Court by 14 the Federal Bureau of Investigation. 15 16 17 18 ‘‘(B) The total number of applications reviewed for accuracy or completeness. ‘‘(C) The total number of material errors or omissions identified during such reviews. 19 ‘‘(D) The total number of nonmaterial er- 20 rors or omissions identified during such reviews. 21 ‘‘(E) The total number of instances in 22 which facts contained in an application were 23 not supported by documentation that existed in 24 the applicable file being reviewed at the time of 25 the accuracy review.’’. BAG20644 S.L.C. 8 1 2 SEC. lll. ACCURACY PROCEDURES. (a) DEFINITION OF ACCURACY PROCEDURES.— 3 (1) TITLE I.—Section 101 (50 U.S.C. 1801) is 4 further amended by adding at the end the following: 5 ‘‘(u) ‘Accuracy procedures’ means specific proce- 6 dures, adopted by the Attorney General, which are reason7 ably designed to ensure that an application for an order 8 for electronic surveillance or physical search is accurate 9 and complete, including procedures to ensure that— 10 ‘‘(1) the application reflects all information that 11 might reasonably call into question the accuracy of 12 the information or the reasonableness of any assess- 13 ment in the application, or otherwise raises doubts 14 about the requested findings; 15 ‘‘(2) the application reflects all material infor- 16 mation that might reasonably call into question the 17 reliability and reporting of any information from a 18 confidential human source that is used in the appli- 19 cation; 20 21 ‘‘(3) a complete file documenting each factual assertion in an application is maintained; 22 ‘‘(4) the applicant coordinates with the appro- 23 priate elements of the intelligence community (as de- 24 fined in section 3 of the National Security Act of 25 1947 (50 U.S.C. 3003)), concerning any prior or ex- 26 isting relationship with the target of any surveillance BAG20644 S.L.C. 9 1 or search, and discloses any such relationship in the 2 application; 3 ‘‘(5) before any application targeting a United 4 States person is made, the applicant Federal officer 5 shall document that the officer has collected and re- 6 viewed for accuracy and completeness supporting 7 documentation for each factual assertion in the ap- 8 plication; and 9 ‘‘(6) the applicant Federal agency establish 10 compliance and auditing mechanisms on an annual 11 basis to assess the efficacy of the accuracy proce- 12 dures that have been adopted and report such find- 13 ings to the Attorney General.’’. 14 (2) TITLE III.—Section 301(1) (50 U.S.C. 15 1821(l)) is further amended by inserting ‘‘ ‘accuracy 16 procedures’,’’ after ‘‘ ‘person’,’’. 17 (b) REQUIREMENTS.— 18 (1) ELECTRONIC SURVEILLANCE.— 19 (A) APPLICATIONS.—Section 104(a) (50 20 U.S.C. 1804(a)), as amended by section 201(a), 21 is further amended— 22 23 (i) in paragraph (9), by striking ‘‘; and’’ and inserting a semicolon; BAG20644 S.L.C. 10 1 (ii) in paragraph (10), by striking the 2 period at the end and inserting a semi- 3 colon; and 4 (iii) by adding at the end the fol- 5 6 7 lowing: ‘‘(11) a statement of the proposed accuracy procedures; 8 ‘‘(12) all information that might reasonably call 9 into question the accuracy of the information or the 10 reasonableness of any assessment in the application, 11 or otherwise raises doubts about the requested find- 12 ings; and 13 ‘‘(13) all material information that might rea- 14 sonably call into question the reliability and report- 15 ing of any information from a confidential human 16 source that is used in the application.’’. 17 18 (B) ORDERS.—Section 105(a) (50 U.S.C. 1805(a)) is amended— 19 20 (i) in paragraph (3), by striking ‘‘; and’’ and inserting a semicolon; 21 (ii) in paragraph (4), by striking the 22 period at the end and inserting ‘‘; and’’; 23 and 24 25 (iii) by adding at the end the following: BAG20644 S.L.C. 11 1 ‘‘(5) the proposed accuracy procedures are ac- 2 tually accuracy procedures as defined in section 3 101.’’. 4 (2) PHYSICAL SEARCHES.— 5 (A) APPLICATIONS.—Section 303(a) (50 6 U.S.C. 1823(a)), as amended by section 201(b), 7 is further amended— 8 (i) in paragraph (8), by striking ‘‘; 9 and’’ and inserting a semicolon; 10 (ii) in paragraph (9), by striking the 11 period at the end and inserting a semi- 12 colon; and 13 (iii) by adding at the end the fol- 14 15 16 lowing: ‘‘(10) a statement of the proposed accuracy procedures; 17 ‘‘(11) all information that might reasonably call 18 into question the accuracy of the information or the 19 reasonableness of any assessment in the application, 20 or otherwise raises doubts about the requested find- 21 ings; and 22 ‘‘(12) all material information that might rea- 23 sonably call into question the reliability and report- 24 ing of any information from a confidential human 25 source that is used in the application.’’. BAG20644 S.L.C. 12 1 2 (B) ORDERS.—Section 304(a) (50 U.S.C. 1824(a)) is amended— 3 (i) in paragraph (3), by striking ‘‘; 4 and’’ and inserting a semicolon; 5 (ii) in paragraph (4), by striking the 6 period at the end and inserting ‘‘; and’’; 7 and 8 (iii) by adding at the end the fol- 9 lowing: 10 ‘‘(5) the proposed accuracy procedures are ac- 11 tually accuracy procedures as defined in section 12 101.’’. 13 (c) CERTIFICATION REGARDING ACCURACY PROCE- 14 15 16 17 18 19 20 DURES.— (1) ELECTRONIC SURVEILLANCE.—Section 104(a)(6) (50 U.S.C. 1804(a)(6)) is amended— (A) in subparagraph (D), by striking ‘‘; and’’ and inserting a semicolon; (B) in subparagraph (E)(ii), by inserting ‘‘and’’ after the semicolon; and 21 (C) by adding at the end the following: 22 ‘‘(F) that the certifying official or the offi- 23 cial’s designee has collected and reviewed for 24 accuracy and completeness supporting docu- BAG20644 S.L.C. 13 1 mentation for each factual assertion contained 2 in the application;’’. 3 (2) PHYSICAL 4 SEARCHES.—Section 303(a)(6) (50 U.S.C. 1823(a)(6)) is amended— 5 (A) in subparagraph (D), by striking ‘‘; 6 and’’ and inserting a semicolon; 7 (B) in subparagraph (E), by inserting 8 ‘‘and’’ after the semicolon; and 9 (C) by adding at the end the following: 10 ‘‘(F) that the certifying official or the offi- 11 cial’s designee has collected and reviewed for 12 accuracy and completeness supporting docu- 13 mentation for each factual assertion contained 14 in the application;’’. 15 SEC. lll. LIMITATIONS ON APPLICATIONS RELATING TO 16 17 CAMPAIGNS FOR FEDERAL OFFICE. (a) ELECTRONIC SURVEILLANCE.—Section 104 (50 18 U.S.C. 1804) is amended by adding at the end the fol19 lowing: 20 ‘‘(e) An application that targets a campaign for Fed- 21 eral office may not contain information obtained from an22 other candidate for that Federal elected office or an indi23 vidual working on behalf of such candidate’s campaign.’’. 24 (b) PHYSICAL SEARCHES.—Section 303 (50 U.S.C. 25 1823) is amended by adding at the end the following: BAG20644 S.L.C. 14 1 ‘‘(e) An application that targets a campaign for Fed- 2 eral office may not contain information obtained from an3 other candidate for that Federal elected office or an indi4 vidual working on behalf of such candidate’s campaign.’’.