Collapse to view only § 1801. Definitions
- § 1801. Definitions
- § 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court
- § 1803. Designation of judges
- § 1804. Applications for court orders
- § 1805. Issuance of order
- §§ 1805a to 1805c. Repealed.
- § 1806. Use of information
- § 1807. Report of electronic surveillance
- § 1808. Report of Attorney General to Congressional committees; limitation on authority or responsibility of information gathering activities of Congressional committees; report of Congressional committees to Congress
- § 1809. Criminal sanctions
- § 1810. Civil liability
- § 1811. Authorization during time of war
- § 1812. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted
- § 1813. Procedures for the retention of incidentally acquired communications
§ 1801. DefinitionsAs used in this subchapter:
(a) “Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons;
(6) an entity that is directed and controlled by a foreign government or governments; or
(7) an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.
(b) “Agent of a foreign power” means—
(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4), irrespective of whether the person is inside the United States;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities;
(C) Omitted
(D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or
(E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor, for or on behalf of a foreign power, or knowingly aids or abets any person in the conduct of such proliferation or activities in preparation therefor, or knowingly conspires with any person to engage in such proliferation or activities in preparation therefor; or
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(c) “International terrorism” means activities that—
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended—
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
(d) “Sabotage” means activities that involve a violation of chapter 105 of title 18, or that would involve such a violation if committed against the United States.
(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
(g) “Attorney General” means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28.
(h) “Minimization procedures”, with respect to electronic surveillance, means—
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3).
(j) “United States”, when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
(k) “Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.
(l) “Wire communication” means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
(m) “Person” means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.
(n) “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
(o) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
(p) “Weapon of mass destruction” means—
(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or
(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.
(Pub. L. 95–511, title I, § 101, Oct. 25, 1978, 92 Stat. 1783; Pub. L. 106–120, title VI, § 601, Dec. 3, 1999, 113 Stat. 1619; Pub. L. 107–56, title X, § 1003, Oct. 26, 2001, 115 Stat. 392; Pub. L. 107–108, title III, § 314(a)(1), (c)(2), Dec. 28, 2001, 115 Stat. 1402, 1403; Pub. L. 108–458, title VI, § 6001(a), Dec. 17, 2004, 118 Stat. 3742; Pub. L. 109–177, title V, § 506(a)(5), Mar. 9, 2006, 120 Stat. 248; Pub. L. 110–261, title I, § 110(a), July 10, 2008, 122 Stat. 2465; Pub. L. 111–259, title VIII, § 801(1), Oct. 7, 2010, 124 Stat. 2746; Pub. L. 114–23, title VII, §§ 702, 703, June 2, 2015, 129 Stat. 300.)
§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court
(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808(a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803(a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801(h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806(f) of this title.
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) unless such surveillance may involve the acquisition of communications of any United States person.
(Pub. L. 95–511, title I, § 102, Oct. 25, 1978, 92 Stat. 1786; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748.)
§ 1803. Designation of judges
(a) Court to hear applications and grant orders; record of denial; transmittal to court of review
(1) The Chief Justice of the United States shall publicly designate 11 district court judges from at least seven of the United States judicial circuits of whom no fewer than 3 shall reside within 20 miles of the District of Columbia who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter, except that no judge designated under this subsection (except when sitting en banc under paragraph (2)) shall hear the same application for electronic surveillance under this chapter which has been denied previously by another judge designated under this subsection. If any judge so designated denies an application for an order authorizing electronic surveillance under this chapter, such judge shall provide immediately for the record a written statement of each reason for his decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established in subsection (b).
(2)
(A) The court established under this subsection may, on its own initiative, or upon the request of the Government in any proceeding or a party under section 1861(f) 1
1 See References in Text note below.
of this title or paragraph (4) or (5) of section 1881a(i) of this title, hold a hearing or rehearing, en banc, when ordered by a majority of the judges that constitute such court upon a determination that—(i) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
(ii) the proceeding involves a question of exceptional importance.
(B) Any authority granted by this chapter to a judge of the court established under this subsection may be exercised by the court en banc. When exercising such authority, the court en banc shall comply with any requirements of this chapter on the exercise of such authority.
(C) For purposes of this paragraph, the court en banc shall consist of all judges who constitute the court established under this subsection.
(b) Court of review; record, transmittal to Supreme Court
(c) Expeditious conduct of proceedings; security measures for maintenance of records
(d) Tenure
(e) Jurisdiction and procedures for review of petitions
(1) Three judges designated under subsection (a) who reside within 20 miles of the District of Columbia, or, if all of such judges are unavailable, other judges of the court established under subsection (a) as may be designated by the presiding judge of such court, shall comprise a petition review pool which shall have jurisdiction to review petitions filed pursuant to section 1861(f)(1) 1 or 1881a(i)(4) of this title.
(2) Not later than 60 days after March 9, 2006, the court established under subsection (a) shall adopt and, consistent with the protection of national security, publish procedures for the review of petitions filed pursuant to section 1861(f)(1) 1 or 1881a(i)(4) of this title by the panel established under paragraph (1). Such procedures shall provide that review of a petition shall be conducted in camera and shall also provide for the designation of an acting presiding judge.
(f) Stay of order
(1) A judge of the court established under subsection (a), the court established under subsection (b) or a judge of that court, or the Supreme Court of the United States or a justice of that court, may, in accordance with the rules of their respective courts, enter a stay of an order or an order modifying an order of the court established under subsection (a) or the court established under subsection (b) entered under any subchapter of this chapter, while the court established under subsection (a) conducts a rehearing, while an appeal is pending to the court established under subsection (b), or while a petition of certiorari is pending in the Supreme Court of the United States, or during the pendency of any review by that court.
(2) The authority described in paragraph (1) shall apply to an order entered under any provision of this chapter.
(g) Establishment and transmittal of rules and procedures
(1) The courts established pursuant to subsections (a) and (b) may establish such rules and procedures, and take such actions, as are reasonably necessary to administer their responsibilities under this chapter.
(2) The rules and procedures established under paragraph (1), and any modifications of such rules and procedures, shall be recorded, and shall be transmitted to the following:
(A) All of the judges on the court established pursuant to subsection (a).
(B) All of the judges on the court of review established pursuant to subsection (b).
(C) The Chief Justice of the United States.
(D) The Committee on the Judiciary of the Senate.
(E) The Select Committee on Intelligence of the Senate.
(F) The Committee on the Judiciary of the House of Representatives.
(G) The Permanent Select Committee on Intelligence of the House of Representatives.
(3) The transmissions required by paragraph (2) shall be submitted in unclassified form, but may include a classified annex.
(h) Compliance with orders, rules, and procedures
(i) Amicus curiae
(1) Designation
(2) AuthorizationA court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time—
(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate; and
(B) may appoint an individual or organization to serve as amicus curiae, including to provide technical expertise, in any instance as such court deems appropriate or, upon motion, permit an individual or organization leave to file an amicus curiae brief.
(3) Qualifications of amicus curiae
(A) Expertise
(B) Security clearance
(4) DutiesIf a court established under subsection (a) or (b) appoints an amicus curiae under paragraph (2)(A), the amicus curiae shall provide to the court, as appropriate—
(A) legal arguments that advance the protection of individual privacy and civil liberties;
(B) information related to intelligence collection or communications technology; or
(C) legal arguments or information regarding any other area relevant to the issue presented to the court.
(5) Assistance
(6) Access to information
(A) In generalIf a court established under subsection (a) or (b) appoints an amicus curiae under paragraph (2), the amicus curiae—
(i) shall have access to any legal precedent, application, certification, petition, motion, or such other materials that the court determines are relevant to the duties of the amicus curiae; and
(ii) may, if the court determines that it is relevant to the duties of the amicus curiae, consult with any other individuals designated pursuant to paragraph (1) regarding information relevant to any assigned proceeding.
(B) Briefings
(C) Classified information
(D) Rule of construction
(7) Notification
(8) Assistance
(9) Administration
(10) Receipt of information
(11) Compensation
(j) Review of FISA court decisions
(k) Review of FISA court of review decisions
(1) Certification
(2) Amicus curiae briefing
(Pub. L. 95–511, title I, § 103, Oct. 25, 1978, 92 Stat. 1788; Pub. L. 107–56, title II, § 208, Oct. 26, 2001, 115 Stat. 283; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 109–177, title I, §§ 106(f)(1), 109(d), Mar. 9, 2006, 120 Stat. 197, 205; Pub. L. 110–55, § 5(a), Aug. 5, 2007, 121 Stat. 556; Pub. L. 110–261, title I, § 109(a)–(b)(2)(A), (c), (d), title IV, § 403(a)(1)(B)(ii), July 10, 2008, 122 Stat. 2464, 2465, 2474; Pub. L. 111–259, title VIII, §§ 801(2), 806(a)(2), Oct. 7, 2010, 124 Stat. 2746, 2748; Pub. L. 114–23, title IV, § 401, June 2, 2015, 129 Stat. 279; Pub. L. 115–118, title I, §§ 101(b)(2)(A), 106, title II, § 205(a)(1), (b)(1), Jan. 19, 2018, 132 Stat. 8, 13, 21, 22.)
§ 1804. Applications for court orders
(a) Submission by Federal officer; approval of Attorney General; contentsEach application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(7) a summary statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; and
(9) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter.
(b) Additional affidavits or certifications
(c) Additional information
(d) Personal review by Attorney General
(1)
(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in section 1801(b)(2) of this title.
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2)
(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.
(Pub. L. 95–511, title I, § 104, Oct. 25, 1978, 92 Stat. 1788; Pub. L. 106–567, title VI, § 602(a), Dec. 27, 2000, 114 Stat. 2851; Pub. L. 107–56, title II, § 218, Oct. 26, 2001, 115 Stat. 291; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 109–177, title I, § 108(a)(1), Mar. 9, 2006, 120 Stat. 203; Pub. L. 110–261, title I, § 104, July 10, 2008, 122 Stat. 2460; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748.)
§ 1805. Issuance of order
(a) Necessary findingsUpon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that—
(1) the application has been made by a Federal officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the applicant there is probable cause to believe that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(3) the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) of this title; and
(4) the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804(a)(7)(E) 1
1 See References in Text note below.
of this title and any other information furnished under section 1804(d) 1 of this title.(b) Determination of probable cause
(c) Specifications and directions of orders
(1)Specifications.—An order approving an electronic surveillance under this section shall specify—
(A) the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to section 1804(a)(3) of this title;
(B) the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known;
(C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;
(D) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; and
(E) the period of time during which the electronic surveillance is approved.
(2) direct— 2
2 So in original.
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;
(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.
(3)Special directions for certain orders.—An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of—
(A) the nature and location of each new facility or place at which the electronic surveillance is directed;
(B) the facts and circumstances relied upon by the applicant to justify the applicant’s belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;
(C) a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and
(D) the total number of electronic surveillances that have been or are being conducted under the authority of the order.
(d) Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated
(1) An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that (A) an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title, for the period specified in the application or for one year, whichever is less, and (B) an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.
(2) Extensions of an order issued under this subchapter may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that (A) an extension of an order under this chapter for a surveillance targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section 1801(a) of this title, or against a foreign power as defined in section 1801(a)(4) of this title that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and (B) an extension of an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for a period not to exceed 1 year.
(3) At or before the end of the period of time for which electronic surveillance is approved by an order or an extension, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(4) A denial of the application made under section 1804 of this title may be reviewed as provided in section 1803 of this title.
(e) Emergency orders
(1) Notwithstanding any other provision of this subchapter, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General—
(A) reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained;
(B) reasonably determines that the factual basis for the issuance of an order under this subchapter to approve such electronic surveillance exists;
(C) informs, either personally or through a designee, a judge having jurisdiction under section 1803 of this title at the time of such authorization that the decision has been made to employ emergency electronic surveillance; and
(D) makes an application in accordance with this subchapter to a judge having jurisdiction under section 1803 of this title as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance.
(2) If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.
(5) In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(f) Emergencies involving non-United States persons
(1) Notwithstanding any other provision of this chapter, the lawfully authorized targeting of a non-United States person previously believed to be located outside the United States for the acquisition of foreign intelligence information may continue for a period not to exceed 72 hours from the time that the non-United States person is reasonably believed to be located inside the United States and the acquisition is subject to this subchapter or to subchapter II of this chapter, provided that the head of an element of the intelligence community—
(A) reasonably determines that a lapse in the targeting of such non-United States person poses a threat of death or serious bodily harm to any person;
(B) promptly notifies the Attorney General of a determination under subparagraph (A); and
(C) requests, as soon as practicable, the employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title, as warranted.
(2) The authority under this subsection to continue the acquisition of foreign intelligence information is limited to a period not to exceed 72 hours and shall cease upon the earlier of the following:
(A) The employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title.
(B) An issuance of a court order under this subchapter or subchapter II of this chapter.
(C) The Attorney General provides direction that the acquisition be terminated.
(D) The head of the element of the intelligence community conducting the acquisition determines that a request under paragraph (1)(C) is not warranted.
(E) When the threat of death or serious bodily harm to any person is no longer reasonably believed to exist.
(3) Nonpublicly available information concerning unconsenting United States persons acquired under this subsection shall not be disseminated during the 72 hour time period under paragraph (1) unless necessary to investigate, reduce, or eliminate the threat of death or serious bodily harm to any person.
(4) If the Attorney General declines to authorize the employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title, or a court order is not obtained under this subchapter or subchapter II of this chapter, information obtained during the 72 hour acquisition time period under paragraph (1) shall not be retained, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(5) Paragraphs (5) and (6) of subsection (e) shall apply to this subsection.
(g) Testing of electronic equipment; discovering unauthorized electronic surveillance; training of intelligence personnelNotwithstanding any other provision of this subchapter, officers, employees, or agents of the United States are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to—
(1) test the capability of electronic equipment, if—
(A) it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;
(B) the test is limited in extent and duration to that necessary to determine the capability of the equipment;
(C) the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and:
(D)Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;
(2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if—
(A) it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and
(C) any information acquired by such surveillance is used only to enforce chapter 119 of title 18, or section 605 of title 47, or to protect information from unauthorized surveillance; or
(3) train intelligence personnel in the use of electronic surveillance equipment, if—
(A) it is not reasonable to—
(i) obtain the consent of the persons incidentally subjected to the surveillance;
(ii) train persons in the course of surveillances otherwise authorized by this subchapter; or
(iii) train persons in the use of such equipment without engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and
(C) no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.
(h) Retention of certifications, applications and orders
(i) Bar to legal action
(j) Pen registers and trap and trace devices
(Pub. L. 95–511, title I, § 105, Oct. 25, 1978, 92 Stat. 1790; Pub. L. 98–549, § 6(b)(3), Oct. 30, 1984, 98 Stat. 2804; Pub. L. 106–567, title VI, § 602(b), Dec. 27, 2000, 114 Stat. 2851; Pub. L. 107–56, title II, §§ 206, 207(a)(1), (b)(1), 225, Oct. 26, 2001, 115 Stat. 282, 295; Pub. L. 107–108, title III, § 314(a)(2), (c)(1), Dec. 28, 2001, 115 Stat. 1402, 1403; Pub. L. 107–273, div. B, title IV, § 4005(c), Nov. 2, 2002, 116 Stat. 1812; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 109–177, title I, §§ 102(b)(1), 105(a), 108(a)(2), (b), Mar. 9, 2006, 120 Stat. 195, 203; Pub. L. 110–261, title I, §§ 105(a), 110(c)(1), July 10, 2008, 122 Stat. 2461, 2466; Pub. L. 111–118, div. B, § 1004(a), Dec. 19, 2009, 123 Stat. 3470; Pub. L. 111–141, § 1(a), Feb. 27, 2010, 124 Stat. 37; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748; Pub. L. 112–3, § 2(a), Feb. 25, 2011, 125 Stat. 5; Pub. L. 112–14, § 2(a), May 26, 2011, 125 Stat. 216; Pub. L. 114–23, title VII, §§ 701(a), 705(a), (c), June 2, 2015, 129 Stat. 298, 300; Pub. L. 115–118, title II, § 205(b)(2), Jan. 19, 2018, 132 Stat. 22; Pub. L. 116–69, div. B, title VII, § 1703(a), Nov. 21, 2019, 133 Stat. 1143.)
§§ 1805a to 1805c. Repealed. Pub. L. 110–261, title IV, § 403(a)(1)(A), July 10, 2008, 122 Stat. 2473
§ 1806. Use of information
(a) Compliance with minimization procedures; privileged communications; lawful purposes
(b) Statement for disclosure
(c) Notification by United States
(d) Notification by States or political subdivisions
(e) Motion to suppressAny person against whom evidence obtained or derived from an electronic surveillance to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that—
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(f) In camera and ex parte review by district court
(g) Suppression of evidence; denial of motion
(h) Finality of orders
(i) Destruction of unintentionally acquired information
(j) Notification of emergency employment of electronic surveillance; contents; postponement, suspension or eliminationIf an emergency employment of electronic surveillance is authorized under subsection (e) or (f) of section 1805 of this title and a subsequent order approving the surveillance is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of—
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Coordination with law enforcement on national security matters
(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this subchapter may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 1804(a)(7)(B) 1
1 See References in Text note below.
of this title or the entry of an order under section 1805 of this title.(Pub. L. 95–511, title I, § 106, Oct. 25, 1978, 92 Stat. 1793; Pub. L. 107–56, title V, § 504(a), Oct. 26, 2001, 115 Stat. 364; Pub. L. 107–296, title VIII, § 898, Nov. 25, 2002, 116 Stat. 2258; Pub. L. 110–261, title I, §§ 106, 110(b)(1), July 10, 2008, 122 Stat. 2462, 2466; Pub. L. 114–23, title VII, § 701(b), June 2, 2015, 129 Stat. 299; Pub. L. 117–347, title III, § 323(a)(1)(A), Jan. 5, 2023, 136 Stat. 6206.)
§ 1807. Report of electronic surveillance
(a) Annual report
In April of each year, the Attorney General shall transmit to the Administrative Office of the United States Courts and to the congressional intelligence committees and the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding calendar year—
(1) the total number of applications made for orders and extensions of orders approving electronic surveillance under this subchapter;
(2) the total number of such orders and extensions either granted, modified, or denied; and
(3) the total number of subjects targeted by electronic surveillance conducted under an order or emergency authorization under this subchapter, rounded to the nearest 500, including the number of such individuals who are United States persons, reported to the nearest band of 500, starting with 0–499.
(b) Form
(Pub. L. 95–511, title I, § 107, Oct. 25, 1978, 92 Stat. 1795; Pub. L. 115–118, title I, § 107(a), Jan. 19, 2018, 132 Stat. 14.)
§ 1808. Report of Attorney General to Congressional committees; limitation on authority or responsibility of information gathering activities of Congressional committees; report of Congressional committees to Congress
(a)
(1) On a semiannual basis the Attorney General shall fully inform the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate concerning all electronic surveillance under this subchapter. Nothing in this subchapter shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.
(2) Each report under the first sentence of paragraph (1) shall include a description of—
(A) the total number of applications made for orders and extensions of orders approving electronic surveillance under this subchapter where the nature and location of each facility or place at which the electronic surveillance will be directed is unknown;
(B) each criminal case in which information acquired under this chapter has been authorized for use at trial during the period covered by such report;
(C) the total number of emergency employments of electronic surveillance under section 1805(e) of this title and the total number of subsequent orders approving or denying such electronic surveillance; and
(D) the total number of authorizations under section 1805(f) of this title and the total number of subsequent emergency employments of electronic surveillance under section 1805(e) of this title or emergency physical searches pursuant to section 301(e).1
1 See References in Text note below.
(b) On or before one year after October 25, 1978, and on the same day each year for four years thereafter, the Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence shall report respectively to the House of Representatives and the Senate, concerning the implementation of this chapter. Said reports shall include but not be limited to an analysis and recommendations concerning whether this chapter should be (1) amended, (2) repealed, or (3) permitted to continue in effect without amendment.
(Pub. L. 95–511, title I, § 108, Oct. 25, 1978, 92 Stat. 1795; Pub. L. 106–567, title VI, § 604(a), Dec. 27, 2000, 114 Stat. 2853; Pub. L. 109–177, title I, § 108(c), Mar. 9, 2006, 120 Stat. 204; Pub. L. 110–261, title I, § 105(b), July 10, 2008, 122 Stat. 2462; Pub. L. 114–23, title VI, § 605(a), title VII, § 701(c), June 2, 2015, 129 Stat. 297, 299.)
§ 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by this chapter, chapter 119, 121, or 206 of title 18, or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title;
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this chapter, chapter 119, 121, or 206 of title 18, or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.
(b) Defense
(c) Penalties
(d) Federal jurisdiction
(Pub. L. 95–511, title I, § 109, Oct. 25, 1978, 92 Stat. 1796; Pub. L. 110–261, title I, § 102(b), July 10, 2008, 122 Stat. 2459; Pub. L. 111–259, title VIII, § 801(3), Oct. 7, 2010, 124 Stat. 2746.)
§ 1810. Civil liability
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.
(Pub. L. 95–511, title I, § 110, Oct. 25, 1978, 92 Stat. 1796.)
§ 1811. Authorization during time of war
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
(Pub. L. 95–511, title I, § 111, Oct. 25, 1978, 92 Stat. 1796.)
§ 1812. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
(Pub. L. 95–511, title I, § 112, as added Pub. L. 110–261, title I, § 102(a), July 10, 2008, 122 Stat. 2459.)
§ 1813. Procedures for the retention of incidentally acquired communications
(a) DefinitionsIn this section:
(1) Covered communication
(2) Head of an element of the intelligence communityThe term “head of an element of the intelligence community” means, as appropriate—
(A) the head of an element of the intelligence community; or
(B) the head of the department or agency containing such element.
(3) United States person
(b) Procedures for covered communications
(1) Requirement to adopt
(2) Coordination and approvalThe procedures required by paragraph (1) shall be—
(A) prepared in coordination with the Director of National Intelligence; and
(B) approved by the Attorney General prior to issuance.
(3) Procedures
(A) Application
(B) Limitation on retentionA covered communication shall not be retained in excess of 5 years, unless—
(i) the communication has been affirmatively determined, in whole or in part, to constitute foreign intelligence or counterintelligence or is necessary to understand or assess foreign intelligence or counterintelligence;
(ii) the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency;
(iii) the communication is enciphered or reasonably believed to have a secret meaning;
(iv) all parties to the communication are reasonably believed to be non-United States persons;
(v) retention is necessary to protect against an imminent threat to human life, in which case both the nature of the threat and the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the date such retention is extended under this clause;
(vi) retention is necessary for technical assurance or compliance purposes, including a court order or discovery obligation, in which case access to information retained for technical assurance or compliance purposes shall be reported to the congressional intelligence committees on an annual basis; or
(vii) retention for a period in excess of 5 years is approved by the head of the element of the intelligence community responsible for such retention, based on a determination that retention is necessary to protect the national security of the United States, in which case the head of such element shall provide to the congressional intelligence committees a written certification describing—(I) the reasons extended retention is necessary to protect the national security of the United States;(II) the duration for which the head of the element is authorizing retention;(III) the particular information to be retained; and(IV) the measures the element of the intelligence community is taking to protect the privacy interests of United States persons or persons located inside the United States.
(Pub. L. 113–293, title III, § 309, Dec. 19, 2014, 128 Stat. 3998.)