I 

113TH CONGRESS 

1ST SESSION H. R. 2849 

To amend the Foreign Intelligence Surveillance Act of 1978 to establish 

an Office of the Privacy Advocate General. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 30, 2013 

Mr. LYNCH introduced the following bill; which was referred to the Committee 

on the Judiciary, and in addition to the Select Committee on Intelligence 

(Permanent Select), for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

A BILL 

To amend the Foreign Intelligence Surveillance Act of 1978 

to establish an Office of the Privacy Advocate General. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Privacy Advocate Gen5 eral Act of 2013’’. 

6 SEC. 2. OFFICE OF THE PRIVACY ADVOCATE GENERAL. 

7 (a) ESTABLISHMENT.—The Foreign Intelligence Sur8 veillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended 

9 by adding at the end the following new title: 


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1 ‘‘TITLE IX—PRIVACY ADVOCATE 

2 GENERAL 

3 ‘‘SEC. 901. PRIVACY ADVOCATE GENERAL. 

4 ‘‘(a) OFFICE OF THE PRIVACY ADVOCATE GEN5 ERAL.—There is established an independent office in the 

6 Executive branch to be known as the Office of the Privacy 

7 Advocate General. 

8 ‘‘(b) PRIVACY ADVOCATE GENERAL.— 

9 ‘‘(1) APPOINTMENT.—There is a Privacy Advo10 cate General, who shall be the head of the Office of 

11 the Privacy Advocate General, who shall be ap12 pointed jointly by the Chief Justice of the United 

13 States and the most senior associate justice of the 

14 Supreme Court appointed by a President that at the 

15 time of appointment was a member of a political 

16 party other than the political party of the President 

17 that appointed the Chief Justice. 

18 ‘‘(2) TERM.—The Privacy Advocate General 

19 shall serve a term of 7 years and may be re20 appointed in accordance with paragraph (1). 

21 ‘‘(c) DUTIES.—Notwithstanding any other provision 

22 of this Act, the Privacy Advocate General— 

23 ‘‘(1) shall serve as the opposing counsel with re24 spect to any application by the Federal Government 

25 for an order or directive under this Act and any reVerDate Mar 15 2010 21:49 Aug 05, 2013 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2849.IH H2849

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1 view of a certification or targeting procedures under 

2 this Act, including in any proceedings before a court 

3 or review of an application, certification, or targeting 

4 procedures under this Act that would otherwise be 

5 conducted ex parte; 

6 ‘‘(2) shall, in carrying out paragraph (1), op7 pose any Federal Government request for an order 

8 or directive under this Act and any certification or 

9 targeting procedures under this Act and argue the 

10 merits of the opposition before the court concerned, 

11 including any arguments relating to the constitu12 tionality of a provision of law under which the Fed13 eral Government is seeking an order or directive; 

14 and 

15 ‘‘(3) may request the court established under 

16 subsection (a) or (b) of section 103 to make publicly 

17 available an order, decision, or opinion of such court. 

18 ‘‘(d) APPEALS.—The Privacy Advocate General 

19 may— 

20 ‘‘(1) appeal a decision of the court established 

21 under subsection (a) of section 103 to the court es22 tablished under subsection (b) of such section; and 

23 ‘‘(2) petition the Supreme Court for a writ of 

24 certiorari for review of a decision of the court estab25 lished under section 103(b). 


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1 ‘‘(e) STAFF.—The Privacy Advocate General shall 

2 appoint such staff of the Office of the Privacy Advocate 

3 General as the Privacy Advocate General considers nec4 essary to carry out the duties of the Privacy Advocate 

5 General. 

6 ‘‘(f) SECURITY CLEARANCE.—The President shall en7 sure that the Privacy Advocate General and the staff of 

8 the Office of the Privacy Advocate General appointed 

9 under subsection (b) possess appropriate security clear10 ances to carry out the duties of the Privacy Advocate Gen11 eral under this section.’’. 

12 (b) TABLE OF CONTENTS AMENDMENT.—The table 

13 of contents in the first section of the Foreign Intelligence 

14 Surveillance Act of 1978 (50 U.S.C. 1801 note) is amend15 ed by adding at the end the following new items: 

‘‘TITLE IX—PRIVACY ADVOCATE GENERAL 

‘‘Sec. 901. Privacy Advocate General.’’. 

16 (c) CONFORMING AMENDMENT.—Section 103(b) of 

17 the Foreign Intelligence Surveillance Act of 1978 (50 

18 U.S.C. 1803(b)) is amended— 

19 (1) by striking ‘‘review the denial’’ and insert20 ing ‘‘review the approval or denial’’; 

21 (2) by striking ‘‘properly denied’’ and inserting 

22 ‘‘properly approved or denied, as the case may be’’; 

23 and 


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1 (3) by striking ‘‘petition of the United States’’ 

2 and inserting ‘‘petition’’. 

3 SEC. 3. AUTHORITY DURING APPEALS PROCESS. 

4 (a) ELECTRONIC SURVEILLANCE.—Section 105 of 

5 the Foreign Intelligence Surveillance Act of 1978 (50 

6 U.S.C. 1805) is amended by adding at the end the fol7 lowing new subsection: 

8 ‘‘(i)(1) In any case where a judge denies an applica9 tion under this section and the Government expresses an 

10 intent to appeal that denial, the judge may temporarily 

11 authorize the emergency employment of electronic surveil12 lance pending such appeal if the judge finds— 

13 ‘‘(A) there is a reasonable argument that the 

14 electronic surveillance is permissible; and 

15 ‘‘(B) there are exceptional circumstances and 

16 compelling evidence showing that immediate elec17 tronic surveillance is necessary to accomplish the 

18 purpose of the electronic surveillance. 

19 ‘‘(2) In any case where a judge authorizes the emer20 gency employment of electronic surveillance pending ap21 peal under paragraph (1) and the application by the Gov22 ernment is denied on appeal, any information gathered or 

23 derived from such electronic surveillance shall be de24 stroyed and no such information may be received in evi25 dence or otherwise disclosed in any trial, hearing, or other 


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1 proceeding in or before any court, grand jury, department, 

2 office, agency, regulatory body, legislative committee, or 

3 other authority of the United States, a State, or political 

4 subdivision thereof, and no information concerning any 

5 United States person acquired from such surveillance shall 

6 subsequently be used or disclosed in any other manner by 

7 Federal officers or employees without the consent of such 

8 person.’’. 

9 (b) PHYSICAL SEARCH.—Section 304 of the Foreign 

10 Intelligence Surveillance Act of 1978 (50 U.S.C. 1824) is 

11 amended by adding at the end the following new sub12 section: 

13 ‘‘(f)(1) In any case where a judge denies an applica14 tion under this section and the Government expresses an 

15 intent to appeal that denial, the judge may temporarily 

16 authorize the emergency employment of physical search 

17 pending such appeal if the judge finds— 

18 ‘‘(A) there is a reasonable argument that the 

19 physical search is permissible; and 

20 ‘‘(B) there are exceptional circumstances and 

21 compelling evidence showing that an immediate 

22 physical search is necessary to accomplish the pur23 pose of the physical search. 

24 ‘‘(2) In any case where a judge authorizes the emer25 gency employment of a physical search pending appeal 


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1 under paragraph (1) and the application by the Govern2 ment is denied on appeal, any information gathered or de3 rived from such physical search shall be destroyed and no 

4 such information may be received in evidence or otherwise 

5 disclosed in any trial, hearing, or other proceeding in or 

6 before any court, grand jury, department, office, agency, 

7 regulatory body, legislative committee, or other authority 

8 of the United States, a State, or political subdivision 

9 thereof, and no information concerning any United States 

10 person acquired from such physical search shall subse11 quently be used or disclosed in any other manner by Fed12 eral officers or employees without the consent of such per13 son.’’. 

14 (c) PEN REGISTER AND TRAP AND TRACE.—Section 

15 403 of the Foreign Intelligence Surveillance Act of 1978 

16 (50 U.S.C. 1843) is amended by adding at the end the 

17 following new subsection: 

18 ‘‘(d)(1) In any case where a judge denies an applica19 tion under this section and the Government expresses an 

20 intent to appeal that denial, the judge may temporarily 

21 authorize installation and use of a pen register or trap 

22 and trace device on an emergency basis pending such ap23 peal if the judge finds— 


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1 ‘‘(A) there is a reasonable argument that the 

2 installation and use of a pen register or trap and 

3 trace device is permissible; and 

4 ‘‘(B) there are exceptional circumstances and 

5 compelling evidence showing that immediate installa6 tion and use of a pen register or trap and trace de7 vice is necessary to accomplish the purpose of the in8 stallation and use of such pen register or trap and 

9 trace device. 

10 ‘‘(2) In any case where a judge authorizes the instal11 lation and use of a pen register or trap and trace device 

12 on an emergency basis pending appeal under paragraph 

13 (1) and the application by the Government is denied on 

14 appeal, any information gathered or derived from such in15 stallation and use of a pen register or trap and trace de16 vice shall be destroyed and no such information may be 

17 received in evidence or otherwise disclosed in any trial, 

18 hearing, or other proceeding in or before any court, grand 

19 jury, department, office, agency, regulatory body, legisla20 tive committee, or other authority of the United States, 

21 a State, or political subdivision thereof, and no informa22 tion concerning any United States person acquired from 

23 such installation and use of a pen register or trap and 

24 trace device shall subsequently be used or disclosed in any 


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1 other manner by Federal officers or employees without the 

2 consent of such person.’’. 

Æ 


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