OLL20422 S.L.C. AMENDMENT NO.llll Calendar No.lll Purpose: To improve the amicus provisions and require the disclosure of relevant information. 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 AMENDMENTS intended to be proposed by lllllll Viz: 1 In subsection (a)(2)(B) of section 602 of the Foreign 2 Intelligence Surveillance Act of 1978 (50 U.S.C. 1872), 3 as added by section 301(b)(3), insert after ‘‘section 4 103(i)’’ the following: ‘‘, a proceeding in the Foreign Intel5 ligence Court of Review resulting from the petition of an 6 amicus curiae under section 103(i)(7), or a proceeding in 7 which an amicus curiae could have been appointed pursu8 ant to section 103(i)(2)(A)’’. 9 In section 302, strike subsections (a) and (b) and in- 10 sert the following: 11 (a) EXPANSION OF APPOINTMENT AUTHORITY.— OLL20422 S.L.C. 2 1 (1) IN GENERAL.—Subparagraph (A) of section 2 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended to read 3 as follows: 4 ‘‘(A) shall appoint an individual who has 5 been designated under paragraph (1) and who 6 possesses expertise in privacy and civil liberties 7 to serve as amicus curiae to assist such court 8 in the consideration of any application or mo- 9 tion for an order or review that, in the opinion 10 of the court— 11 ‘‘(i) presents a novel or significant in- 12 terpretation of the law, unless the court 13 issues a finding that such appointment is 14 not appropriate; 15 ‘‘(ii) presents significant concerns 16 with respect to the activities of a United 17 States person that are protected by the 18 first amendment to the Constitution of the 19 United States, unless the court issues a 20 finding that such appointment is not ap- 21 propriate; 22 ‘‘(iii) presents or involves a sensitive 23 investigative matter, unless the court 24 issues a finding that such appointment is 25 not appropriate; OLL20422 S.L.C. 3 1 ‘‘(iv) presents a request for approval 2 of a new program, a new technology, or a 3 new use of existing technology, unless the 4 court issues a finding that such appoint- 5 ment is not appropriate; 6 ‘‘(v) presents a request for reauthor- 7 ization of programmatic surveillance, un- 8 less the court issues a finding that such 9 appointment is not appropriate; or 10 ‘‘(vi) otherwise presents civil liberties 11 issues, unless the court issues a finding 12 that such appointment is not appropriate; 13 and’’. 14 (2) DEFINITION OF SENSITIVE INVESTIGATIVE 15 MATTER.—Subsection 16 1803) is amended by adding at the end the fol- 17 lowing: 18 19 20 21 (i) of section 103 (50 U.S.C. ‘‘(12) DEFINITION.—In this subsection, the term ‘sensitive investigative matter’ means— ‘‘(A) an investigative matter involving the activities of— 22 ‘‘(i) a domestic public official or polit- 23 ical candidate, or an individual serving on 24 the staff of such an official or candidate; OLL20422 S.L.C. 4 1 ‘‘(ii) a domestic religious or political 2 organization, or an individual prominent in 3 such an organization; or 4 ‘‘(iii) the domestic news media; or 5 ‘‘(B) any other investigative matter that, 6 in the judgment of the applicable court estab- 7 lished under subsection (a) or (b), is as sen- 8 sitive as an investigative matter described in 9 subparagraph (A).’’. 10 (b) AUTHORITY TO SEEK REVIEW.—Subsection (i) of 11 section 103 (50 U.S.C. 1803), as amended by subsection 12 (a) of this section, is amended— 13 (1) in paragraph (4)— 14 15 (A) in the paragraph heading, by inserting ‘‘; AUTHORITY’’ after ‘‘DUTIES’’; 16 (B) by redesignating subparagraphs (A), 17 (B), and (C) as clauses (i), (ii), and (iii), re- 18 spectively, and adjusting the margins accord- 19 ingly; 20 (C) in the matter preceding clause (i), as 21 so designated, by striking ‘‘the amicus curiae 22 shall’’ and inserting the following: ‘‘the amicus 23 curiae— 24 ‘‘(A) shall’’; OLL20422 S.L.C. 5 1 (D) in subparagraph (A)(i), as so des- 2 ignated, by inserting before the semicolon at the 3 end the following: ‘‘, including legal arguments 4 regarding any colorable privacy or civil liberties 5 interest of any United States person’’; and 6 (E) by striking the period at the end and 7 inserting the following: ‘‘; and 8 ‘‘(B) may raise any issue with the court at 9 any time, regardless of whether the court has 10 requested assistance on that issue.’’; 11 (2) by redesignating paragraphs (7) through 12 (12) as paragraphs (8) through (13), respectively; 13 and 14 15 16 17 18 (3) by inserting after paragraph (6) the following: ‘‘(7) AUTHORITY TO SEEK REVIEW OF DECI- SIONS.— ‘‘(A) FISA COURT DECISIONS.—Following 19 issuance of an order under this Act by the For- 20 eign Intelligence Surveillance Court, an amicus 21 curiae appointed under paragraph (2) may peti- 22 tion the Foreign Intelligence Surveillance Court 23 to certify for review to the Foreign Intelligence 24 Surveillance Court of Review a question of law 25 pursuant to subsection (j). If the court denies OLL20422 S.L.C. 6 1 such petition, the court shall provide for the 2 record a written statement of the reasons for 3 such denial. Upon certification of any question 4 of law pursuant to this subparagraph, the 5 Court of Review shall appoint the amicus curiae 6 to assist the Court of Review in its consider- 7 ation of the certified question, unless the Court 8 of Review issues a finding that such appoint- 9 ment is not appropriate. 10 ‘‘(B) FISA COURT OF REVIEW DECI- 11 SIONS.—An 12 paragraph (2) may petition the Foreign Intel- 13 ligence Surveillance Court of Review to certify 14 for review to the Supreme Court of the United 15 States any question of law pursuant to section 16 1254(2) of title 28, United States Code. 17 ‘‘(C) amicus curiae appointed under DECLASSIFICATION OF REFER- 18 RALS.—For 19 filed under subparagraph (A) or (B) of this 20 paragraph and all of its content shall be consid- 21 ered a decision, order, or opinion issued by the 22 Foreign Intelligence Surveillance Court or the 23 Foreign Intelligence Surveillance Court of Re- 24 view described in paragraph (2) of section 25 602(a).’’. purposes of section 602, a petition OLL20422 S.L.C. 7 1 In section 302(c), redesignate paragraph (2) as para- 2 graph (3). 3 In section 302(c), strike paragraph (1) and insert the 4 following: 5 (1) APPLICATION AND MATERIALS.—Subpara- 6 graph 7 1803(i)(6)) is amended to read as follows: 8 9 (A) of ‘‘(A) IN section 103(i)(6) (50 U.S.C. GENERAL.— ‘‘(i) RIGHT OF AMICUS.—If a court 10 established under subsection (a) or (b) ap- 11 points an amicus curiae under paragraph 12 (2), the amicus curiae— 13 14 ‘‘(I) shall have access to— ‘‘(aa) the application, certifi- 15 cation, 16 other information and supporting 17 materials, including any informa- 18 tion described in section 901, 19 submitted to the Foreign Intel- 20 ligence Surveillance Court in con- 21 nection with the matter in which 22 the amicus curiae has been ap- 23 pointed, including access to any 24 relevant legal precedent (includ- 25 ing any such precedent that is petition, motion, and OLL20422 S.L.C. 8 1 cited by the Government, includ- 2 ing in such an application); 3 ‘‘(bb) any other information 4 or materials that the court deter- 5 mines is relevant to the duties of 6 the amicus curiae; and 7 ‘‘(cc) an unredacted copy of 8 each relevant decision made by 9 the Foreign Intelligence Surveil- 10 lance Court or the Foreign Intel- 11 ligence Surveillance Court of Re- 12 view in which the court decides a 13 question of law, without regard 14 to whether the decision is classi- 15 fied; and 16 ‘‘(II) may make a submission to 17 the court requesting access to any 18 other particular materials or informa- 19 tion (or category of materials or infor- 20 mation) that the amicus curiae be- 21 lieves to be relevant to the duties of 22 the amicus curiae. 23 ‘‘(ii) SUPPORTING DOCUMENTATION 24 REGARDING ACCURACY.—The 25 telligence Surveillance Court, upon the mo- Foreign In- OLL20422 S.L.C. 9 1 tion of an amicus curiae appointed under 2 paragraph (2) or upon its own motion, 3 may require the Government to make 4 available the supporting documentation de- 5 scribed in section 902.’’. 6 7 8 9 10 11 12 (2) CLARIFICATION FORMATION.—Such OF ACCESS TO CERTAIN IN- section is further amended— (A) in subparagraph (B), by striking ‘‘may’’ and inserting ‘‘shall’’; and (B) by striking subparagraph (C) and inserting the following: ‘‘(C) CLASSIFIED INFORMATION.—An ami- 13 cus curiae designated or appointed by the court 14 shall have access to unredacted copies of each 15 opinion, order, transcript, pleading, or other 16 document of the Foreign Intelligence Surveil- 17 lance Court and the Foreign Intelligence Sur- 18 veillance Court of Review, including, if the indi- 19 vidual is eligible for access to classified informa- 20 tion, any classified documents, information, and 21 other materials or proceedings.’’. 22 Redesignate section 207 as section 208. 23 Insert after section 206 the following: OLL20422 S.L.C. 10 1 SEC. 207. DISCLOSURE OF RELEVANT INFORMATION; CER- 2 TIFICATION REGARDING ACCURACY PROCE- 3 DURES. 4 5 (a) DISCLOSURE OF RELEVANT INFORMATION.— (1) IN GENERAL.—The Foreign Intelligence 6 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 7 is amended by adding at the end the following: 8 ‘‘TITLE IX—DISCLOSURE OF RELEVANT INFORMATION 9 10 11 ‘‘SEC. 901. DISCLOSURE OF RELEVANT INFORMATION. ‘‘The Attorney General or any other Federal officer 12 making an application for a court order under this Act 13 shall provide the court with— 14 ‘‘(1) all information in the possession of the 15 Government that is material to determining whether 16 the application satisfies the applicable requirements 17 under this Act, including any exculpatory informa- 18 tion; and 19 20 ‘‘(2) all information in the possession of the Government that might reasonably— 21 ‘‘(A) call into question the accuracy of the 22 application or the reasonableness of any assess- 23 ment in the application conducted by the de- 24 partment or agency on whose behalf the appli- 25 cation is made; or OLL20422 S.L.C. 11 1 ‘‘(B) otherwise raise doubts with respect to 2 the findings that are required to be made under 3 the applicable provision of this Act in order for 4 the court order to be issued.’’. 5 (2) TECHNICAL AMENDMENT.—The table of 6 contents of the Foreign Intelligence Surveillance Act 7 of 1978 is amended by adding at the end the fol- 8 lowing: ‘‘TITLE IX—DISCLOSURE OF RELEVANT INFORMATION ‘‘Sec. 901. Disclosure of relevant information.’’. 9 10 11 (b) CERTIFICATION REGARDING ACCURACY PROCEDURES.— (1) IN GENERAL.—Title IX of the Foreign In- 12 telligence Surveillance Act of 1978, as added by sub- 13 section (a), is amended by adding at the end the fol- 14 lowing: 15 16 17 ‘‘SEC. 902. CERTIFICATION REGARDING ACCURACY PROCEDURES. ‘‘Any Federal officer making an application for a 18 court order for electronic surveillance or a physical search 19 under this Act shall include with the application a certifi20 cation that the officer has collected and reviewed for accu21 racy and completeness supporting documentation for each 22 factual assertion contained in the application.’’. 23 24 (2) TECHNICAL AMENDMENT.—The table of contents of the Foreign Intelligence Surveillance Act OLL20422 S.L.C. 12 1 of 1978, as amended by subsection (a), is amended 2 by inserting after the item relating to section 901 3 the following: ‘‘Sec. 902. Certification regarding accuracy procedures.’’. 4 In section 208, as so redesignated, strike ‘‘section 5 501 of the Foreign Intelligence Surveillance Act of 1978 6 (50 U.S.C. 1861)’’ and insert ‘‘the Foreign Intelligence 7 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) (if ap8 plicable)’’.