II 

112TH CONGRESS 

2D SESSION S. 3515 

To amend the Foreign Intelligence Surveillance Act of 1978 to provide 

additional protections for privacy and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 2, 2012 

Mr. MERKLEY (for himself, Mr. WYDEN, and Mr. TESTER) introduced the following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL 

To amend the Foreign Intelligence Surveillance Act of 1978 

to provide additional protections for privacy and for other 

purposes. 

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 ‘‘Protect America’s Pri5 vacy Act of 2012’’. 

6 SEC. 2. PROHIBITION ON REVERSE TARGETING UNDER 

7 FISA. 

8 Section 702 of the Foreign Intelligence Surveillance 

9 Act of 1978 (50 U.S.C. 1881a) is amended— 


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1 (1) in subsection (b)(2), by striking ‘‘the pur2 pose’’ and all that follows and inserting the fol3 lowing: ‘‘a significant purpose of the acquisition is to 

4 acquire the communications of a particular, known 

5 person reasonably believed to be located in the 

6 United States, except in accordance with title I;’’; 

7 (2) in subsection (d)(1)(A)— 

8 (A) by striking ‘‘ensure that’’ and insert 

9 the following: ‘‘ensure— 

10 ‘‘(i) that’’; and 

11 (B) by adding at the end the following: 

12 ‘‘(ii) that an application is filed under 

13 title I, if otherwise required, when a sig14 nificant purpose of an acquisition author15 ized under subsection (a) is to acquire the 

16 communications of a particular, known 

17 person reasonably believed to be located in 

18 the United States; and’’; 

19 (3) in subsection (g)(2)(A)(i)(I)— 

20 (A) by striking ‘‘ensure that’’ and insert 

21 the following: ‘‘ensure— 

22 ‘‘(aa) that’’; and 

23 (B) by adding at the end the following: 

24 ‘‘(bb) that an application is 

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1 quired, when a significant pur2 pose of an acquisition authorized 

3 under subsection (a) is to acquire 

4 the communications of a par5 ticular, known person reasonably 

6 believed to be located in the 

7 United States; and’’; and 

8 (4) in subsection (i)(2)(B)(i)— 

9 (A) by striking ‘‘ensure that’’ and insert 

10 the following: ‘‘ensure— 

11 ‘‘(I) that’’; and 

12 (B) by adding at the end the following: 

13 ‘‘(II) that an application is filed 

14 under title I, if otherwise required, 

15 when a significant purpose of an ac16 quisition authorized under subsection 

17 (a) is to acquire the communications 

18 of a particular, known person reason19 ably believed to be located in the 

20 United States; and’’. 

21 SEC. 3. LIMITS ON USE OF UNLAWFULLY OBTAINED INFOR22 MATION UNDER FISA. 

23 Section 702(i)(3) of the Foreign Intelligence Surveil24 lance Act of 1978 (50 U.S.C. 1881a(i)(3)) is amended by 

25 striking subparagraph (B) and inserting the following: 


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1 ‘‘(B) CORRECTION OF DEFICIENCIES.— 

2 ‘‘(i) IN GENERAL.—If the Court finds 

3 that a certification required by subsection 

4 (g) does not contain all of the required ele5 ments, or that the procedures required by 

6 subsections (d) and (e) are not consistent 

7 with the requirements of those subsections 

8 or the Fourth Amendment to the Constitu9 tion of the United States, the Court shall 

10 issue an order directing the Government 

11 to, at the Government’s election and to the 

12 extent required by the order of the 

13 Court— 

14 ‘‘(I) correct any deficiency identi15 fied by the order of the Court not 

16 later than 30 days after the date on 

17 which the Court issues the order; or 

18 ‘‘(II) cease the acquisition au19 thorized under subsection (a). 

20 ‘‘(ii) LIMITATION ON USE OF INFOR21 MATION.— 

22 ‘‘(I) IN GENERAL.—Except as 

23 provided in subclause (II), no infor24 mation obtained or evidence derived 

25 from an acquisition determined to be 


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1 deficient under clause (i) concerning 

2 any person located in the United 

3 States or United States person shall 

4 be received in evidence or otherwise 

5 disclosed in any trial, hearing, or 

6 other proceeding in or before any 

7 court, grand jury, department, office, 

8 agency, regulatory body, legislative 

9 committee, or other authority of the 

10 United States, a State, or political 

11 subdivision thereof, and no informa12 tion concerning any United States 

13 person acquired from the acquisition 

14 shall subsequently be used or dis15 closed in any other manner by Fed16 eral officers or employees without the 

17 consent of the United States person, 

18 except with the approval of the Attor19 ney General if the information indi20 cates a threat of death or serious bod21 ily harm to any person. 

22 ‘‘(II) EXCEPTION.—If the Gov23 ernment corrects any deficiency iden24 tified by the order of the Court under 

25 clause (i), the Court may permit the 


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1 use or disclosure of information ac2 quired before the date of the correc3 tion under such minimization proce4 dures as the Court shall establish for 

5 purposes of this clause.’’. 

6 SEC. 4. PRIVACY PROTECTIONS FOR INTERNATIONAL COM7 MUNICATIONS OF AMERICANS COLLECTED 

8 UNDER FISA. 

9 (a) IN GENERAL.—Title VII of the Foreign Intel10 ligence Surveillance Act of 1978 (50 U.S.C. 1881) is 

11 amended by adding at the end the following: 

12 ‘‘SEC. 709. ADDITIONAL SAFEGUARDS FOR COMMUNICA13 TIONS OF PERSONS IN THE UNITED STATES. 

14 ‘‘(a) LIMITATIONS ON ACQUISITION OF COMMUNICA15 TIONS.— 

16 ‘‘(1) LIMITATION.—Except as authorized under 

17 title I or paragraph (2), no communication shall be 

18 acquired under this title if the Government knows 

19 before or at the time of acquisition that the commu20 nication is to or from a person reasonably believed 

21 to be located in the United States. 

22 ‘‘(2) EXCEPTION.— 

23 ‘‘(A) IN GENERAL.—In addition to any au24 thority under title I to acquire communications 


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1 described in paragraph (1), the communications 

2 may be acquired if— 

3 ‘‘(i) there is reason to believe that the 

4 communication concerns international ter5 rorist activities directed against the United 

6 States, or activities in preparation there7 for; 

8 ‘‘(ii) there is probable cause to believe 

9 that the target reasonably believed to be 

10 located outside the United States is an 

11 agent of a foreign power and the foreign 

12 power is a group engaged in international 

13 terrorism or activities in preparation there14 for; or 

15 ‘‘(iii) there is reason to believe that 

16 the acquisition is necessary to prevent 

17 death or serious bodily harm. 

18 ‘‘(B) ACCESS TO COMMUNICATIONS.— 

19 Communications acquired under this paragraph 

20 shall be treated in accordance with subsection 

21 (b). 

22 ‘‘(3) PROCEDURES FOR DETERMINATIONS BE23 FORE OR AT THE TIME OF ACQUISITION.— 

24 ‘‘(A) SUBMISSION.—Not later than 120 

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1 tect America’s Privacy Act of 2012, the Attor2 ney General, in consultation with the Director 

3 of National Intelligence, shall submit to the 

4 Foreign Intelligence Surveillance Court for ap5 proval procedures for determining before or at 

6 the time of acquisition, if reasonably prac7 ticable, whether a communication is to or from 

8 a person reasonably believed to be located in 

9 the United States and whether the exception 

10 under paragraph (2) applies to that commu11 nication. 

12 ‘‘(B) REVIEW.—The Foreign Intelligence 

13 Surveillance Court shall approve the procedures 

14 submitted under subparagraph (A) if the proce15 dures are reasonably designed to determine be16 fore or at the time of acquisition, if reasonably 

17 practicable, whether a communication is to or 

18 from a person reasonably believed to be located 

19 in the United States and whether the exception 

20 under paragraph (2) applies to that commu21 nication. 

22 ‘‘(C) PROCEDURES DO NOT MEET RE23 QUIREMENTS.—If the Foreign Intelligence Sur24 veillance Court concludes that the procedures 

25 submitted under subparagraph (A) do not meet 


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1 the requirements of subparagraph (B), this sec2 tion, and the 4th Amendment, the Court shall 

3 enter an order so stating and provide a written 

4 statement for the record of the reasons for the 

5 determination. The Government may appeal an 

6 order under this subparagraph to the Foreign 

7 Intelligence Surveillance Court of Review. 

8 ‘‘(D) USE OF PROCEDURES.—If the For9 eign Intelligence Surveillance Court approves 

10 procedures under this paragraph, the Govern11 ment shall use the procedures in any acquisition 

12 of communications under this title. 

13 ‘‘(E) REVISIONS.—The Attorney General, 

14 in consultation with the Director of National 

15 Intelligence, may submit new or amended proce16 dures to the Foreign Intelligence Surveillance 

17 Court for review under this paragraph. 

18 ‘‘(F) RELIABILITY.—If the Government 

19 obtains new information relating to the reli20 ability of procedures approved under this para21 graph or the availability of more reliable proce22 dures, the Attorney General shall submit to the 

23 Foreign Intelligence Surveillance Court the in24 formation. 


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1 ‘‘(b) LIMITATIONS ON ACCESS TO COMMUNICA2 TIONS.— 

3 ‘‘(1) IN GENERAL.—At such time as the Gov4 ernment can reasonably determine that a commu5 nication acquired under this title (including a com6 munication acquired under subsection (a)(2)) is to 

7 or from a person reasonably believed to be located 

8 in the United States or a United States person the 

9 communication shall be specifically designated and 

10 handled or otherwise managed such that no person 

11 may access or search for the communication, except 

12 in accordance with title I, this section, or chapter 

13 119 of title 18, United States Code. 

14 ‘‘(2) EXCEPTIONS.—In addition to any author15 ity under title I, including the emergency provision 

16 in section 105(f), a communication described in 

17 paragraph (1) may be accessed and disseminated for 

18 a period of not longer than 7 days if— 

19 ‘‘(A)(i) there is reason to believe that the 

20 communication concerns international terrorist 

21 activities directed against the United States, or 

22 activities in preparation therefor; 

23 ‘‘(ii) there is probable cause to believe that 

24 the target reasonably believed to be located out25 side the United States is an agent of a foreign 


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1 power and the foreign power is a group engaged 

2 in international terrorism or activities in prepa3 ration therefor; or 

4 ‘‘(iii) there is reason to believe that the ac5 cess is necessary to prevent death or serious 

6 bodily harm; 

7 ‘‘(B) the Attorney General notifies the 

8 Foreign Intelligence Surveillance Court imme9 diately of the access; and 

10 ‘‘(C) not later than 7 days after the date 

11 the access is initiated, the Attorney General— 

12 ‘‘(i) makes an application for an order 

13 under title I or pursuant to chapter 119 of 

14 title 18, United States Code; or 

15 ‘‘(ii) submits to the Foreign Intel16 ligence Surveillance Court a document 

17 that— 

18 ‘‘(I) certifies that— 

19 ‘‘(aa) there is reason to be20 lieve that the communication con21 cerns international terrorist ac22 tivities directed against the 

23 United States, or activities in 

24 preparation therefor; 


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1 ‘‘(bb) there is probable 

2 cause to believe that the target 

3 reasonably believed to be located 

4 outside the United States is an 

5 agent of a foreign power and the 

6 foreign power is a group engaged 

7 in international terrorism or ac8 tivities in preparation therefor; or 

9 ‘‘(cc) there is reason to be10 lieve that the access is necessary 

11 to prevent death or serious bodily 

12 harm; and 

13 ‘‘(II) identifies the target of the 

14 collection, the party to the commu15 nication who is in the United States if 

16 known, and the extent to which infor17 mation relating to the communication 

18 has been disseminated. 

19 ‘‘(3) DENIAL OF COURT ORDER.—If an applica20 tion for a court order described in paragraph 

21 (2)(C)(i) is made and is not approved, the Attorney 

22 General shall submit to the Foreign Intelligence Sur23 veillance Court, not later than 7 days after the date 

24 of the denial of the application, the document de25 scribed in paragraph (2)(C)(ii). 


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1 ‘‘(4) ADDITIONAL COURT AUTHORITIES.— 

2 ‘‘(A) IN GENERAL.—The Foreign Intel3 ligence Surveillance Court may— 

4 ‘‘(i) limit access to communications 

5 described in paragraph (1) relating to a 

6 particular target if the Court determines 

7 that any certification submitted under 

8 paragraph (2)(C)(ii)(I) with respect to that 

9 target is clearly erroneous; and 

10 ‘‘(ii) require the Attorney General to 

11 provide the factual basis for a certification 

12 submitted under paragraph (2)(C)(ii)(I), if 

13 the Court determines it would aid the 

14 Court in conducting review under this sub15 section. 

16 ‘‘(B) FISC ACCESS.—The Foreign Intel17 ligence Surveillance Court shall have access to 

18 any communications that have been specifically 

19 designated under paragraph (1) and any infor20 mation the use of which has been limited under 

21 paragraph (5). 

22 ‘‘(5) FAILURE TO NOTIFY.— 

23 ‘‘(A) IN GENERAL.—In the circumstances 

24 described in subparagraph (B), access to a com25 munication shall terminate, and no information 


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1 obtained or evidence derived from the access 

2 concerning any United States person shall be 

3 received in evidence or otherwise disclosed in 

4 any trial, hearing, or other proceeding in or be5 fore any court, grand jury, department, office, 

6 agency, regulatory body, legislative committee, 

7 or other authority of the United States, a State, 

8 or political subdivision thereof, and no informa9 tion concerning any United States person ac10 quired from the access shall subsequently be 

11 used or disclosed in any manner by Federal of12 ficers or employees without the consent of the 

13 person, except with the approval of the Attor14 ney General if the information indicates a 

15 threat of death or serious bodily harm to any 

16 person, or if a court order is obtained under 

17 title I or pursuant to chapter 119 of title 18, 

18 United States Code. 

19 ‘‘(B) CIRCUMSTANCES.—The cir20 cumstances described in this subparagraph are 

21 circumstances in which— 

22 ‘‘(i) as of the date that is 7 days after 

23 the date on which access to a communica24 tion is initiated under paragraph (2), a 

25 court order described in paragraph 


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1 (2)(C)(i) has not been sought and the doc2 ument described in paragraph (2)(C)(ii) 

3 has not been submitted; or 

4 ‘‘(ii) as of the date that is 7 days 

5 after an application for a court order de6 scribed in paragraph (2)(C)(i) is denied, 

7 the document described in paragraph 

8 (2)(C)(ii) is not submitted in accordance 

9 with paragraph (3). 

10 ‘‘(6) EVIDENCE OF A CRIME.—Information or 

11 communications subject to this subsection may be 

12 disseminated for law enforcement purposes if it is 

13 evidence that a crime has been, is being, or is about 

14 to be committed, if dissemination is made in accord15 ance with section 106(b). 

16 ‘‘(7) PROCEDURES FOR DETERMINATIONS

17 AFTER ACQUISITION.— 

18 ‘‘(A) IN GENERAL.—Not later than 120 

19 days after the date of enactment of the Protect 

20 America’s Privacy Act of 2012, the Attorney 

21 General, in consultation with the Director of 

22 National Intelligence, shall submit to the For23 eign Intelligence Surveillance Court for ap24 proval procedures— 


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1 ‘‘(i) for determining, if reasonably 

2 practicable, whether a communication ac3 quired under this title is to or from a per4 son reasonably believed to be in the United 

5 States or is a United States person; and 

6 ‘‘(ii) for ensuring that no person may 

7 access such a communication, except as de8 scribed in subsection (b)(1). 

9 ‘‘(B) REVIEW.—The Foreign Intelligence 

10 Surveillance Court shall approve the procedures 

11 submitted under subparagraph (A) if the proce12 dures are reasonably designed to determine, if 

13 reasonably practicable, whether a communica14 tion acquired under this title is a communica15 tion to or from a person reasonably believed to 

16 be located in the United States. 

17 ‘‘(C) PROCEDURES DO NOT MEET RE18 QUIREMENTS.—If the Foreign Intelligence Sur19 veillance Court concludes that the procedures 

20 submitted under subparagraph (A) do not meet 

21 the requirements of subparagraph (B), this sec22 tion, or the Fourth Amendment to the Con23 stitution of the United States, the Court shall 

24 enter an order so stating and provide a written 

25 statement for the record of the reasons for the 


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1 determination. The Government may appeal an 

2 order under this subparagraph to the Foreign 

3 Intelligence Surveillance Court of Review. 

4 ‘‘(D) USE OF PROCEDURES.—If the For5 eign Intelligence Surveillance Court approves 

6 under this paragraph the procedures submitted 

7 under subparagraph (A), the Government shall 

8 use such procedures for any communication ac9 quired under this title. 

10 ‘‘(E) REVISIONS.—If the Attorney General 

11 seeks to replace or modify procedures approved 

12 under this paragraph, the Attorney General, in 

13 consultation with the Director of National Intel14 ligence, shall submit the replacement or modi15 fied procedures to the Foreign Intelligence Sur16 veillance Court. The Court shall review such re17 placement or modified procedures as provided 

18 in this paragraph. 

19 ‘‘(F) RELIABILITY.—If the Government 

20 obtains new information relating to the reli21 ability of procedures approved under this para22 graph or the availability of more reliable proce23 dures, the Attorney General shall submit to the 

24 Foreign Intelligence Surveillance Court such in25 formation. 


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1 ‘‘(c) TITLE I COURT ORDER.—If the Government ob2 tains a court order under title I relating to a target of 

3 an acquisition under this title, the Government may access 

4 and disseminate, under the terms of that court order and 

5 any applicable minimization requirements, any commu6 nications of that target that have been acquired or specifi7 cally designated under subsection (b)(1). 

8 ‘‘(d) INSPECTOR GENERAL AUDIT.— 

9 ‘‘(1) AUDIT.—Not less than once each year, the 

10 Inspector General of the Department of Defense and 

11 the Inspector General of the Department of Justice 

12 shall complete an audit of the implementation of and 

13 compliance with this section. For purposes of an 

14 audit under this paragraph, the Inspectors General 

15 shall have access to any communications that have 

16 been specifically designated under subsection (b)(1) 

17 and any information the use of which has been lim18 ited under subsection (b)(5). An audit under this 

19 paragraph shall include an accounting of any specifi20 cally designated communications that have been dis21 seminated. 

22 ‘‘(2) REPORT.—Not later than 30 days after 

23 the completion of each audit under paragraph (1), 

24 the Inspectors General shall jointly submit to the 

25 Permanent Select Committee on Intelligence and the 


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1 Committee on the Judiciary of the House of Rep2 resentatives and the Select Committee on Intel3 ligence and the Committee on the Judiciary of the 

4 Senate a report containing the results of the audit. 

5 ‘‘(3) EXPEDITED SECURITY CLEARANCE.—The 

6 Director of National Intelligence shall ensure that 

7 the process for the investigation and adjudication of 

8 an application by an Inspector General or any ap9 propriate staff of an Inspector General for a security 

10 clearance necessary for the conduct of the audits 

11 under this subsection is conducted as expeditiously 

12 as possible. 

13 ‘‘(e) APPLICABILITY.—Subsections (a) and (b) shall 

14 apply to any communication acquired under this title on 

15 or after the earlier of— 

16 ‘‘(1) the date that the Foreign Intelligence Sur17 veillance Court approves the procedures described in 

18 subsection (a)(3) and the procedures described in 

19 subsection (b)(7); and 

20 ‘‘(2) 1 year after the date of enactment of the 

21 Protect America’s Privacy Act of 2012.’’. 

22 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

23 The table of contents in the first section of the Foreign 

24 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 


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1 seq.) is amended by inserting after the item relating to 

2 section 708 the following: 

‘‘Sec. 709. Additional safeguards for communications of persons in the United 

States.’’. 

Æ 


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