### §1813. Procedures for the retention of incidentally acquired communications

#### (a) Definitions

In this section:

#### (1) Covered communication

The term "covered communication" means any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage.

#### (2) Head of an element of the intelligence community

The 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

The term "United States person" has the meaning given that term in section 1801 of this title.

#### (b) Procedures for covered communications

#### (1) Requirement to adopt

Not later than 2 years after December 19, 2014, each head of an element of the intelligence community shall adopt procedures approved by the Attorney General for such element that ensure compliance with the requirements of paragraph (3).

#### (2) Coordination and approval

The 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

The procedures required by paragraph (1) shall apply to any intelligence collection activity not otherwise authorized by court order (including an order or certification issued by a court established under subsection (a) or (b) of section 1803 of this title), subpoena, or similar legal process that is reasonably anticipated to result in the acquisition of a covered communication to or from a United States person and shall permit the acquisition, retention, and dissemination of covered communications subject to the limitation in subparagraph (B).

#### (B) Limitation on retention

A 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.)

#### **Editorial Notes**

#### Codification

Section was enacted as part of the Intelligence Authorization Act for Fiscal Year 2015, and not as part of the Foreign Intelligence Surveillance Act of 1978 which comprises this chapter.

#### **Statutory Notes and Related Subsidiaries**

#### Definitions

For definitions of "congressional intelligence committees" and "intelligence community" as used in this section, see section 2 of Pub. L. 113–293, set out as a note under section 3003 of this title.