50 USC 1881 - Procedures for targeting certain persons outside the United States other than United States persons

Collapse to view only § 1881a. Procedures for targeting certain persons outside the United States other than United States persons

§ 1881. Definitions
§ 1881a. Procedures for targeting certain persons outside the United States other than United States persons
§ 1881b. Certain acquisitions inside the United States targeting United States persons outside the United States
§ 1881c. Other acquisitions targeting United States persons outside the United States
§ 1881d. Joint applications and concurrent authorizations
§ 1881e. Use of information acquired under this subchapter
§ 1881f. Congressional oversight
§ 1881g. Savings provision
§ 1881h. Penalties for unauthorized disclosure

§ 1881. Definitions

(a) In general

(b) Additional definitionsIn this subchapter:

(1) Congressional intelligence committeesThe term “congressional intelligence committees” means—

(A) the Select Committee on Intelligence of the Senate; and

(B) the Permanent Select Committee on Intelligence of the House of Representatives.

(2) Foreign Intelligence Surveillance Court; Court

(3) Foreign Intelligence Surveillance Court of Review; Court of Review

(4) Electronic communication service providerThe term “electronic communication service provider” means—

(A) a telecommunications carrier, as that term is defined in section 153 of title 47;

(B) a provider of electronic communication service, as that term is defined in section 2510 of title 18;

(D) any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored;

(E) any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications, but not including any entity that serves primarily as—

(i) a public accommodation facility, as that term is defined in section 1861(4) of this title;

(ii) a dwelling, as that term is defined in section 3602 of title 42;

(iii) a community facility, as that term is defined in section 1592n of title 42; or

(iv) a food service establishment, as that term is defined in section 1638 of title 7; or

(F) an officer, employee, custodian, or agent of an entity described in subparagraph (A), (B), (C), (D), or (E).

(5) Intelligence community

(Pub. L. 95–511, title VII, § 701, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2437; amended Pub. L. 115–118, title II, § 205(a)(5), Jan. 19, 2018, 132 Stat. 21; Pub. L. 118–49, § 25(a), Apr. 20, 2024, 138 Stat. 893.)

§ 1881a. Procedures for targeting certain persons outside the United States other than United States persons

(a) Authorization

(b) LimitationsAn acquisition authorized under subsection (a)—

(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

(5) may not intentionally acquire communications that contain a reference to, but are not to or from, a target of an acquisition authorized under subsection (a); and

(6) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

(1) In generalAn acquisition authorized under subsection (a) shall be conducted only in accordance with—

(A) the targeting and minimization procedures adopted in accordance with subsections (d) and (e); and

(B) upon submission of a certification in accordance with subsection (h), such certification.

(2) Determination

(3) Timing of determinationThe Attorney General and the Director of National Intelligence may make the determination under paragraph (2)—

(A) before the submission of a certification in accordance with subsection (h); or

(B) by amending a certification pursuant to subsection (j)(1)(C) at any time during which judicial review under subsection (j) of such certification is pending.

(4) Construction

(d) Targeting procedures

(1) Requirement to adoptThe Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to—

(A) ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(B) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

(2) Judicial review

(e) Minimization procedures

(1) Requirement to adopt

(2) Judicial review

(3) PublicationThe Director of National Intelligence, in consultation with the Attorney General, shall—

(A) conduct a declassification review of any minimization procedures adopted or amended in accordance with paragraph (1); and

(B) consistent with such review, and not later than 180 days after conducting such review, make such minimization procedures publicly available to the greatest extent practicable, which may be in redacted form.

(f) Queries

(1) Procedures required

(A) Requirement to adopt

(B) Record of United States person query terms

(2) Prohibition on conduct of queries that are solely designed to find and extract evidence of a crime

(A) Limits on authorizations of United States person queries

(B) ExceptionsThe restriction under subparagraph (A) shall not apply with respect to a query if—

(i) there is a reasonable belief that such query may retrieve information that could assist in mitigating or eliminating a threat to life or serious bodily harm; or

(ii) such query is necessary to identify information that must be produced or preserved in connection with a litigation matter or to fulfill discovery obligations in criminal matters under the laws of the United States or any State thereof.

(3) Restrictions imposed on Federal Bureau of Investigation

(A) Limits on authorizations of United States person queries

(i) In general

(ii) Exception

(B) Notification requirement for certain FBI queries

(i) Requirement

(ii) Appropriate congressional leadership definedIn this subparagraph, the term “appropriate congressional leadership” means the following:(I) The chairs and ranking minority members of the congressional intelligence committees.(II) The Speaker and minority leader of the House of Representatives.(III) The majority and minority leaders of the Senate.

(iii) National security considerations

(iv) Waiver(I) In general(II) Termination

(i) Consent requiredThe Federal Bureau of Investigation may not, for the exclusive purpose of supplementing the contents of a briefing on the defense against a counterintelligence threat to a member of Congress, conduct a query using a query term that is the name or restricted personal information (as such term is defined in section 119 of title 18) of that member unless—(I) the member provides consent to the use of the query term; or(II) the Deputy Director of the Federal Bureau of Investigation determines that exigent circumstances exist sufficient to justify the conduct of such query.

(ii) Notification(I) Notification of consent sought(II) Notification of exception used

(iii) Rule of constructionNothing in this subparagraph may be construed as—(I) applying to matters outside of the scope of the briefing on the defense against a counterintelligence threat to be provided or supplemented under clause (i); or(II) limiting the lawful investigative activities of the Federal Bureau of Investigation other than supplementing the contents of a briefing on the defense against a counterintelligence threat to a member of Congress.

(iv) Appropriate congressional leadership definedIn this subparagraph, the term “appropriate congressional leadership” means the following:(I) The chairs and ranking minority members of the congressional intelligence committees.(II) The Speaker and minority leader of the House of Representatives.(III) The majority and minority leaders of the Senate.

(D) Querying procedures applicable to Federal Bureau of InvestigationFor any procedures adopted under paragraph (1) applicable to the Federal Bureau of Investigation, the Attorney General, in consultation with the Director of National Intelligence, shall include the following requirements:

(i) Training

(ii) Additional prior approvals for sensitive queriesA requirement that, absent exigent circumstances, prior to conducting certain queries, personnel of the Federal Bureau of Investigation receive approval, at minimum, as follows:(I) Approval from the Deputy Director of the Federal Bureau of Investigation if the query uses a query term reasonably believed to identify a United States elected official, an appointee of the President or a State governor, a United States political candidate, a United States political organization or a United States person prominent in such organization, or a United States media organization or a United States person who is a member of such organization.(II) Approval from an attorney of the Federal Bureau of Investigation if the query uses a query term reasonably believed to identify a United States religious organization or a United States person who is prominent in such organization.(III) Approval from an attorney of the Federal Bureau of Investigation if such conduct involves batch job technology (or successor tool).

(iii) Prior written justification

(iv) Storage of certain contents and noncontentsAny system of the Federal Bureau of Investigation that stores unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) together with contents or noncontents obtained through other lawful means shall be configured in a manner that—(I) requires personnel of the Federal Bureau of Investigation to affirmatively elect to include such unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) when running a query; or(II) includes other controls reasonably expected to prevent inadvertent queries of such unminimized contents or noncontents.

(v) Waiver authority for Foreign Intelligence Surveillance Court

(vi) Prohibition on political appointees within the process to approve Federal Bureau of Investigation queries

(4) Minimum accountability standardsThe Director of the Federal Bureau of Investigation shall issue minimum accountability standards that set forth escalating consequences for noncompliant querying of United States person terms within the contents of communications that were acquired under this section. Such standards shall include, at minimum, the following:

(A) Zero tolerance for willful misconduct.

(B) Escalating consequences for unintentional noncompliance, including the threshold for mandatory revocation of access to query information acquired under this section.

(5) DefinitionsIn this subsection:

(A) The term “contents” has the meaning given that term in section 2510(8) of title 18.

(B) The term “query” means the use of one or more terms to retrieve the unminimized contents or noncontents located in electronic and data storage systems of communications of or concerning United States persons obtained through acquisitions authorized under subsection (a).

(6) Vetting of non-United States persons

(g) Guidelines for compliance with limitations

(1) Requirement to adoptThe Attorney General, in consultation with the Director of National Intelligence, shall adopt guidelines to ensure—

(A) compliance with the limitations in subsection (b); and

(B) that an application for a court order is filed as required by this chapter.

(2) Submission of guidelinesThe Attorney General shall provide the guidelines adopted in accordance with paragraph (1) to—

(A) the congressional intelligence committees;

(B) the Committees on the Judiciary of the Senate and the House of Representatives; and

(h) Certification

(1) In general

(A) Requirement

(B) Exception

(2) RequirementsA certification made under this subsection shall—

(A) attest that—

(i) there are targeting procedures in place that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court that are reasonably designed to—(I) ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and(II) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

(ii) the minimization procedures to be used with respect to such acquisition—(I) meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate; and(II) have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court;

(iii) guidelines have been adopted in accordance with subsection (g) to ensure compliance with the limitations in subsection (b) and to ensure that an application for a court order is filed as required by this chapter;

(iv) the procedures and guidelines referred to in clauses (i), (ii), and (iii) are consistent with the requirements of the fourth amendment to the Constitution of the United States;

(v) a significant purpose of the acquisition is to obtain foreign intelligence information;

(vi) the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communication service provider; and

(vii) the acquisition complies with the limitations in subsection (b);

(B) include the procedures adopted in accordance with subsections (d) and (e);

(i) appointed by the President, by and with the advice and consent of the Senate; or

(ii) the head of an element of the intelligence community;

(D) include—

(i) an effective date for the authorization that is at least 30 days after the submission of the written certification to the court; or

(ii) if the acquisition has begun or the effective date is less than 30 days after the submission of the written certification to the court, the date the acquisition began or the effective date for the acquisition; and

(E) if the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2), include a statement that such determination has been made.

(3) Change in effective date

(4) Limitation

(5) Maintenance of certification

(6) Review

(i) Directives and judicial review of directives

(1) AuthorityWith respect to an acquisition authorized under subsection (a), the Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to—

(A) immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; and

(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain.

(2) Compensation

(3) Release from liability

(4) Challenging of directives

(A) Authority to challenge

(B) Assignment

(D) Procedures for initial review

(E) Procedures for plenary review

(F) Continued effect

(G) Contempt of Court

(5) Enforcement of directives

(A) Order to compel

(B) Assignment

(D) Contempt of Court

(E) Process

(6) Appeal

(A) Appeal to the Court of Review

(B) Certiorari to the Supreme Court

(j) Judicial review of certifications and procedures

(1) In general

(A) Review by the Foreign Intelligence Surveillance Court

(B) Time period for review

(2) ReviewThe Court shall review the following:

(A) Certification

(B) Targeting proceduresThe targeting procedures adopted in accordance with subsection (d) to assess whether the procedures are reasonably designed to—

(i) ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(ii) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

(D) Querying procedures

(3) Orders

(A) Approval

(B) Correction of deficienciesIf the Court finds that a certification submitted in accordance with subsection (h) does not contain all the required elements, or that the procedures adopted in accordance with subsections (d), (e), and (f)(1) are not consistent with the requirements of those subsections or the fourth amendment to the Constitution of the United States, the Court shall issue an order directing the Government to, at the Government’s election and to the extent required by the Court’s order—

(i) correct any deficiency identified by the Court’s order not later than 30 days after the date on which the Court issues the order; or

(ii) cease, or not begin, the implementation of the authorization for which such certification was submitted.

(D) Limitation on use of information

(i) In general

(ii) Exception

(4) Appeal

(A) Appeal to the Court of Review

(B) Continuation of acquisition pending rehearing or appealAny acquisition affected by an order under paragraph (3)(B) may continue—

(i) during the pendency of any rehearing of the order by the Court en banc; and

(ii) if the Government files a petition for review of an order under this section, until the Court of Review enters an order under subparagraph (C).

(D) Certiorari to the Supreme Court

(5) Schedule

(A) Reauthorization of authorizations in effect

(B) Reauthorization of orders, authorizations, and directives

(k) Judicial proceedings

(1) Expedited judicial proceedings

(2) Time limits

(l) Maintenance and security of records and proceedings

(1) Standards

(2) Filing and review

(3) Retention of records

(m) Assessments and reviews

(1) Semiannual assessmentNot less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f)(1) and the guidelines adopted in accordance with subsection (g) and shall submit each assessment to—

(A) the Foreign Intelligence Surveillance Court; and

(B) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(i) the congressional intelligence committees; and

(ii) the Committees on the Judiciary of the House of Representatives and the Senate.

(2) Agency assessmentThe Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire foreign intelligence information under subsection (a), with respect to the department or element of such Inspector General—

(A) are authorized to review compliance with the targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f)(1) and the guidelines adopted in accordance with subsection (g);

(B) with respect to acquisitions authorized under subsection (a), shall review the number of disseminated intelligence reports containing a reference to a United States-person identity and the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting;

(C) with respect to acquisitions authorized under subsection (a), shall review the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and

(D) shall provide each such review to—

(i) the Attorney General;

(ii) the Director of National Intelligence; and

(iii) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—(I) the congressional intelligence committees; and(II) the Committees on the Judiciary of the House of Representatives and the Senate.

(3) Annual review

(A) Requirement to conductThe head of each element of the intelligence community conducting an acquisition authorized under subsection (a) shall conduct an annual review to determine whether there is reason to believe that foreign intelligence information has been or will be obtained from the acquisition. The annual review shall provide, with respect to acquisitions authorized under subsection (a)—

(i) an accounting of the number of disseminated intelligence reports containing a reference to a United States-person identity;

(ii) an accounting of the number of United States-person identities subsequently disseminated by that element in response to requests for identities that were not referred to by name or title in the original reporting;

(iii) the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and

(iv) a description of any procedures developed by the head of such element of the intelligence community and approved by the Director of National Intelligence to assess, in a manner consistent with national security, operational requirements and the privacy interests of United States persons, the extent to which the acquisitions authorized under subsection (a) acquire the communications of United States persons, and the results of any such assessment.

(B) Use of review

(C) Provision of reviewThe head of each element of the intelligence community that conducts an annual review under subparagraph (A) shall provide such review to—

(i) the Foreign Intelligence Surveillance Court;

(ii) the Attorney General;

(iii) the Director of National Intelligence; and

(iv) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—(I) the congressional intelligence committees; and(II) the Committees on the Judiciary of the House of Representatives and the Senate.

(n) Restriction on certain information available to Federal Bureau of Investigation

(1) Restriction

(2) Exception for exigent circumstances

(3) Exception for assistance to other agencies

(Pub. L. 95–511, title VII, § 702, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2438; amended Pub. L. 114–23, title III, § 301, June 2, 2015, 129 Stat. 278; Pub. L. 115–118, title I, §§ 101(a)(1), (b)(1), 103, formerly 103(a), (b)(5), 104, title II, § 205(a)(6), Jan. 19, 2018, 132 Stat. 4, 6, 10, 12, 13, 21, renumbered § 103, Pub. L. 118–49, § 22(b)(2)(B), Apr. 20, 2024, 138 Stat. 892; Pub. L. 118–49, §§ 2(a), (b), (d), (e), (f), 3, 16(a)(1), 22(a), (b)(1), 24, Apr. 20, 2024, 138 Stat. 862, 863, 865–867, 883, 891–893.)

§ 1881b. Certain acquisitions inside the United States targeting United States persons outside the United States

(a) Jurisdiction of the Foreign Intelligence Surveillance Court

(1) In general

(2) Limitation

(b) Application

(1) In generalEach application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application, as set forth in this section, and shall include—

(A) the identity of the Federal officer making the application;

(B) the identity, if known, or a description of the United States person who is the target of the acquisition;

(C) a sworn statement of the facts and circumstances relied upon to justify the applicant’s belief that the United States person who is the target of the acquisition is—

(i) a person reasonably believed to be located outside the United States; and

(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(D) a statement of proposed minimization procedures that meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate;

(E) a description of the nature of the information sought and the type of communications or activities to be subjected to acquisition;

(F) a certification made by the Attorney General or an official specified in section 1804(a)(6) of this title that—

(i) the certifying official deems the information sought to be foreign intelligence information;

(ii) a significant purpose of the acquisition is to obtain foreign intelligence information;

(iii) such information cannot reasonably be obtained by normal investigative techniques;

(iv) designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and

(v) includes 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;

(G) a summary statement of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition;

(H) the identity of any electronic communication service provider necessary to effect the acquisition, provided that the application is not required to identify the specific facilities, places, premises, or property at which the acquisition authorized under this section will be directed or conducted;

(I) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application;

(J) a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application;

(K) a certification by the applicant that, to the best knowledge of the applicant, the Attorney General or a designated attorney for the Government has been apprised of all information that might reasonably—

(i) call into question the accuracy of the application or the reasonableness of any assessment in the application conducted by the department or agency on whose behalf the application is made; or

(ii) otherwise raise doubts with respect to the findings required under subsection (c); and

(L) non-cumulative information known to the applicant or declarant that is potentially exculpatory regarding the requested legal findings or any assessment in the application.

(2) Other requirements of the Attorney General

(3) Other requirements of the judge

(1) FindingsUpon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court approving the acquisition if the Court finds that—

(A) the application has been made by a Federal officer and approved by the Attorney General;

(B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—

(i) a person reasonably believed to be located outside the United States; and

(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(C) the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate; and

(D) the application that has been filed contains all statements and certifications required by subsection (b) and the certification or certifications are not clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3).

(2) Probable cause

(3) Review

(A) Limitation on review

(B) Review of probable cause

(D) Review of certification

(4) SpecificationsAn order approving an acquisition under this subsection shall specify—

(A) the identity, if known, or a description of the United States person who is the target of the acquisition identified or described in the application pursuant to subsection (b)(1)(B);

(B) if provided in the application pursuant to subsection (b)(1)(H), the nature and location of each of the facilities or places at which the acquisition will be directed;

(C) the nature of the information sought to be acquired and the type of communications or activities to be subjected to acquisition;

(D) a summary of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition; and

(E) the period of time during which the acquisition is approved.

(5) DirectivesAn order approving an acquisition under this subsection shall direct—

(A) that the minimization procedures referred to in paragraph (1)(C), as approved or modified by the Court, be followed;

(B) if applicable, an electronic communication service provider to provide to the Government forthwith all information, facilities, or assistance necessary to accomplish the acquisition authorized under such order in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition;

(C) if applicable, an electronic communication service provider to maintain under security procedures approved by the Attorney General any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain; and

(D) if applicable, that the Government compensate, at the prevailing rate, such electronic communication service provider for providing such information, facilities, or assistance.

(6) Duration

(7) Compliance

(d) Emergency authorization

(1) Authority for emergency authorizationNotwithstanding any other provision of this chapter, if the Attorney General reasonably determines that—

(A) an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order authorizing such acquisition can with due diligence be obtained, and

(B) the factual basis for issuance of an order under this subsection to approve such acquisition exists,

the Attorney General may authorize such acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General, or a designee of the Attorney General, at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.

(2) Minimization procedures

(3) Termination of emergency authorization

(4) Use of information

(e) Release from liability

(f) Appeal

(1) Appeal to the Foreign Intelligence Surveillance Court of Review

(2) Certiorari to the Supreme Court

(g) Construction

(Pub. L. 95–511, title VII, § 703, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2448; amended Pub. L. 118–49, §§ 6(a)(3), 10(a)(5)(A), (b)(5)(A), Apr. 20, 2024, 138 Stat. 870, 876, 878.)

§ 1881c. Other acquisitions targeting United States persons outside the United States

(a) Jurisdiction and scope

(1) Jurisdiction

(2) Scope

(3) Limitations

(A) Moving or misidentified targets

(B) Applicability

(b) ApplicationEach application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application as set forth in this section and shall include—

(1) the identity of the Federal officer making the application;

(2) the identity, if known, or a description of the specific United States person who is the target of the acquisition;

(3) a sworn statement of the facts and circumstances relied upon to justify the applicant’s belief that the United States person who is the target of the acquisition is—

(A) a person reasonably believed to be located outside the United States; and

(B) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(4) a statement of proposed minimization procedures that meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate;

(5) a certification made by the Attorney General, an official specified in section 1804(a)(6) of this title, or the head of an element of the intelligence community that—

(A) the certifying official deems the information sought to be foreign intelligence information; and

(B) a significant purpose of the acquisition is to obtain foreign intelligence information;

(6) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application;

(7) a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application;

(8)

(A) call into question the accuracy of the application or the reasonableness of any assessment in the application conducted by the department or agency on whose behalf the application is made; or

(B) otherwise raise doubts with respect to the findings required under subsection (c); and

(9) non-cumulative information known to the applicant or declarant that is potentially exculpatory regarding the requested legal findings or any assessment in the application.

(A) the application has been made by a Federal officer and approved by the Attorney General;

(B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—

(i) a person reasonably believed to be located outside the United States; and

(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(C) the proposed minimization procedures, with respect to their dissemination provisions, meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate; and

(D) the application that has been filed contains all statements and certifications required by subsection (b) and the certification provided under subsection (b)(5) is not clearly erroneous on the basis of the information furnished under subsection (b).

(2) Probable cause

(3) Review

(A) Limitations on review

(B) Review of probable cause

(D) Scope of review of certification

(4) Duration

(5) Compliance

(d) Emergency authorization

(1) Authority for emergency authorizationNotwithstanding any other provision of this section, if the Attorney General reasonably determines that—

(A) an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order under that subsection can, with due diligence, be obtained, and

(B) the factual basis for the issuance of an order under this section exists,

the Attorney General may authorize the emergency acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General or a designee of the Attorney General at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.

(2) Minimization procedures

(3) Termination of emergency authorization

(4) Use of information

(e) Appeal

(1) Appeal to the Court of Review

(2) Certiorari to the Supreme Court

(Pub. L. 95–511, title VII, § 704, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2453; amended Pub. L. 118–49, §§ 6(a)(4), 10(a)(5)(B), (b)(5)(B), Apr. 20, 2024, 138 Stat. 870, 876, 878.)

§ 1881d. Joint applications and concurrent authorizations

(a) Joint applications and orders

(b) Concurrent authorization

(1) Concurrent authorization

(2) Use of information

(Pub. L. 95–511, title VII, § 705, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2457; amended Pub. L. 115–118, title I, § 105, Jan. 19, 2018, 132 Stat. 13.)

§ 1881e. Use of information acquired under this subchapter

(a) Information acquired under section 1881a

(1) In general

(2) United States persons

(A) In generalAny information concerning a United States person acquired under section 1881a of this title shall not be used in evidence against that United States person pursuant to paragraph (1) in any criminal proceeding unless—

(i) the Federal Bureau of Investigation obtained an order of the Foreign Intelligence Surveillance Court to access such information pursuant to section 1881a(f)(2) of this title; or

(ii) the Attorney General determines that—(I) the criminal proceeding affects, involves, or is related to the national security of the United States; or(II) the criminal proceeding involves—(aa) death;(bb) kidnapping;(cc) serious bodily injury, as defined in section 1365 of title 18;(dd) conduct that constitutes a criminal offense that is a specified offense against a minor, as defined in section 20911 of title 34;(ee) incapacitation or destruction of critical infrastructure, as defined in section 5195c(e) of title 42;(ff) cybersecurity, including conduct described in section 5195c(e) of title 42 or section 1029, 1030, or 2511 of title 18;(gg) transnational crime, including transnational narcotics trafficking and transnational organized crime; or(hh) human trafficking.

(B) No judicial review

(b) Information acquired under section 1881b

(Pub. L. 95–511, title VII, § 706, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2457; amended Pub. L. 115–118, title I, § 102(a), Jan. 19, 2018, 132 Stat. 8.)

§ 1881f. Congressional oversight

(a) Semiannual report

(b) ContentEach report under subsection (a) shall include—

(1) with respect to section 1881a of this title—

(A) any certifications submitted in accordance with section 1881a(h) of this title during the reporting period;

(B) with respect to each determination under section 1881a(c)(2) of this title, the reasons for exercising the authority under such section;

(D) a description of the judicial review during the reporting period of such certifications and targeting and minimization procedures adopted in accordance with subsections (d) and (e) of section 1881a of this title and utilized with respect to an acquisition under such section, including a copy of an order or pleading in connection with such review that contains a significant legal interpretation of the provisions of section 1881a of this title;

(E) any actions taken to challenge or enforce a directive under paragraph (4) or (5) of section 1881a(i) of this title;

(F) any compliance reviews conducted by the Attorney General or the Director of National Intelligence of acquisitions authorized under section 1881a(a) of this title;

(G) a description of any incidents of noncompliance—

(i) with a directive issued by the Attorney General and the Director of National Intelligence under section 1881a(i) of this title, including incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive under section 1881a(i) of this title; and

(ii) by an element of the intelligence community with procedures and guidelines adopted in accordance with subsections (d), (e), (f)(1), and (g) of section 1881a of this title; and

(H) any procedures implementing section 1881a of this title;

(2) with respect to section 1881b of this title—

(A) the total number of applications made for orders under section 1881b(b) of this title;

(B) the total number of such orders—

(i) granted;

(ii) modified; and

(iii) denied; and

(C) the total number of emergency acquisitions authorized by the Attorney General under section 1881b(d) of this title and the total number of subsequent orders approving or denying such acquisitions; and

(3) with respect to section 1881c of this title—

(A) the total number of applications made for orders under section 1881c(b) of this title;

(B) the total number of such orders—

(i) granted;

(ii) modified; and

(iii) denied; and

(C) the total number of emergency acquisitions authorized by the Attorney General under section 1881c(d) of this title and the total number of subsequent orders approving or denying such applications.

(Pub. L. 95–511, title VII, § 707, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2457; amended Pub. L. 115–118, title I, § 101(b)(2), Jan. 19, 2018, 132 Stat. 8.)

§ 1881g. Savings provision

Nothing in this subchapter shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other subchapter of this chapter.

(Pub. L. 95–511, title VII, § 708, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2458.)

§ 1881h. Penalties for unauthorized disclosure

(a) Offense

(b) Penalty

(Pub. L. 95–511, title VII, § 709, as added Pub. L. 118–49, § 13(c), Apr. 20, 2024, 138 Stat. 882.)