Privacy Advocate General Act of 2013

Summary: Privacy Advocate General Act of 2013 - Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to establish as an independent office in the executive branch the Office of the Privacy Advocate General, to be headed by the Privacy Advocate General who shall be appointed jointly by the Chief Justice of the United States and the senior Associate Justice for a seven-year term. Requires the Privacy Advocate General to: (1) serve as the opposing counsel with respect to any application by the federal government for an order or directive and any review of a certification or targeting procedures under FISA; and (2) oppose any federal government request for an order or directive under FISA and any certification or targeting procedures and argue the merits of the opposition before the FISA court, including any arguments relating to constitutionality. Authorizes the Privacy Advocate General to: (1) request that the FISA court make publicly available an order, decision, or opinion of the court; and (2) file appeals and petition the Supreme Court for a writ of certiorari.  Authorizes a FISA judge, after denying an application by the federal government to permit electronic surveillance, physical searches, and the installation and use of a pen register and trace device, to issue a temporary order allowing such surveillance, searches, and installation pending an appeal by the government, if the judge finds: (1) there is a reasonable argument that such surveillance, search, or installation is permissible; and (2) there are exceptional circumstances and compelling evidence showing that immediate electronic surveillance, physical searches, and installation of pen register and trace devices are necessary to accomplish the government's purpose. Requires the destruction of any information gathered or derived from such electronic surveillance, searches, and installation of pen register and trace devices if the government's application is denied on appeal.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Privacy Advocate General Act of 
2013''.

SEC. 2. OFFICE OF THE PRIVACY ADVOCATE GENERAL.

    (a) Establishment.--The Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the 
following new title:

                  ``TITLE IX--PRIVACY ADVOCATE GENERAL

``SEC. 901. PRIVACY ADVOCATE GENERAL.

    ``(a) Office of the Privacy Advocate General.--There is established 
an independent office in the Executive branch to be known as the Office 
of the Privacy Advocate General.
    ``(b) Privacy Advocate General.--
            ``(1) Appointment.--There is a Privacy Advocate General, 
        who shall be the head of the Office of the Privacy Advocate 
        General, who shall be appointed jointly by the Chief Justice of 
        the United States and the most senior associate justice of the 
        Supreme Court appointed by a President that at the time of 
        appointment was a member of a political party other than the 
        political party of the President that appointed the Chief 
        Justice.
            ``(2) Term.--The Privacy Advocate General shall serve a 
        term of 7 years and may be reappointed in accordance with 
        paragraph (1).
    ``(c) Duties.--Notwithstanding any other provision of this Act, the 
Privacy Advocate General--
            ``(1) shall serve as the opposing counsel with respect to 
        any application by the Federal Government for an order or 
        directive under this Act and any review of a certification or 
        targeting procedures under this Act, including in any 
        proceedings before a court or review of an application, 
        certification, or targeting procedures under this Act that 
        would otherwise be conducted ex parte;
            ``(2) shall, in carrying out paragraph (1), oppose any 
        Federal Government request for an order or directive under this 
        Act and any certification or targeting procedures under this 
        Act and argue the merits of the opposition before the court 
        concerned, including any arguments relating to the 
        constitutionality of a provision of law under which the Federal 
        Government is seeking an order or directive; and
            ``(3) may request the court established under subsection 
        (a) or (b) of section 103 to make publicly available an order, 
        decision, or opinion of such court.
    ``(d) Appeals.--The Privacy Advocate General may--
            ``(1) appeal a decision of the court established under 
        subsection (a) of section 103 to the court established under 
        subsection (b) of such section; and
            ``(2) petition the Supreme Court for a writ of certiorari 
        for review of a decision of the court established under section 
        103(b).
    ``(e) Staff.--The Privacy Advocate General shall appoint such staff 
of the Office of the Privacy Advocate General as the Privacy Advocate 
General considers necessary to carry out the duties of the Privacy 
Advocate General.
    ``(f) Security Clearance.--The President shall ensure that the 
Privacy Advocate General and the staff of the Office of the Privacy 
Advocate General appointed under subsection (b) possess appropriate 
security clearances to carry out the duties of the Privacy Advocate 
General under this section.''.
    (b) Table of Contents Amendment.--The table of contents in the 
first section of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801 note) is amended by adding at the end the following new 
items:

                  ``TITLE IX--PRIVACY ADVOCATE GENERAL

``Sec. 901. Privacy Advocate General.''.
    (c) Conforming Amendment.--Section 103(b) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b)) is amended--
            (1) by striking ``review the denial'' and inserting 
        ``review the approval or denial'';
            (2) by striking ``properly denied'' and inserting 
        ``properly approved or denied, as the case may be''; and
            (3) by striking ``petition of the United States'' and 
        inserting ``petition''.

SEC. 3. AUTHORITY DURING APPEALS PROCESS.

    (a) Electronic Surveillance.--Section 105 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is amended by 
adding at the end the following new subsection:
    ``(i)(1) In any case where a judge denies an application under this 
section and the Government expresses an intent to appeal that denial, 
the judge may temporarily authorize the emergency employment of 
electronic surveillance pending such appeal if the judge finds--
            ``(A) there is a reasonable argument that the electronic 
        surveillance is permissible; and
            ``(B) there are exceptional circumstances and compelling 
        evidence showing that immediate electronic surveillance is 
        necessary to accomplish the purpose of the electronic 
        surveillance.
    ``(2) In any case where a judge authorizes the emergency employment 
of electronic surveillance pending appeal under paragraph (1) and the 
application by the Government is denied on appeal, any information 
gathered or derived from such electronic surveillance shall be 
destroyed and no such information may 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.''.
    (b) Physical Search.--Section 304 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1824) is amended by adding at the 
end the following new subsection:
    ``(f)(1) In any case where a judge denies an application under this 
section and the Government expresses an intent to appeal that denial, 
the judge may temporarily authorize the emergency employment of 
physical search pending such appeal if the judge finds--
            ``(A) there is a reasonable argument that the physical 
        search is permissible; and
            ``(B) there are exceptional circumstances and compelling 
        evidence showing that an immediate physical search is necessary 
        to accomplish the purpose of the physical search.
    ``(2) In any case where a judge authorizes the emergency employment 
of a physical search pending appeal under paragraph (1) and the 
application by the Government is denied on appeal, any information 
gathered or derived from such physical search shall be destroyed and no 
such information may 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 physical search shall subsequently be 
used or disclosed in any other manner by Federal officers or employees 
without the consent of such person.''.
    (c) Pen Register and Trap and Trace.--Section 403 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended by 
adding at the end the following new subsection:
    ``(d)(1) In any case where a judge denies an application under this 
section and the Government expresses an intent to appeal that denial, 
the judge may temporarily authorize installation and use of a pen 
register or trap and trace device on an emergency basis pending such 
appeal if the judge finds--
            ``(A) there is a reasonable argument that the installation 
        and use of a pen register or trap and trace device is 
        permissible; and
            ``(B) there are exceptional circumstances and compelling 
        evidence showing that immediate installation and use of a pen 
        register or trap and trace device is necessary to accomplish 
        the purpose of the installation and use of such pen register or 
        trap and trace device.
    ``(2) In any case where a judge authorizes the installation and use 
of a pen register or trap and trace device on an emergency basis 
pending appeal under paragraph (1) and the application by the 
Government is denied on appeal, any information gathered or derived 
from such installation and use of a pen register or trap and trace 
device shall be destroyed and no such information may 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 
installation and use of a pen register or trap and trace device shall 
subsequently be used or disclosed in any other manner by Federal 
officers or employees without the consent of such person.''.