FISA Amendments Reauthorization Act of 2017

To extend the FISA Amendments Act of 2008 for 8 years, and for other purposes. 1. Short title This Act may be cited as the FISA Amendments Reauthorization Act of 2017 2. Eight-year extension of FISA Amendments Act of 2008 (a) Extension Section 403(b) of the FISA Amendments Act of 2008 ( Public Law 110–261 (1) in paragraph (1), by striking December 31, 2017 December 31, 2025 (2) in paragraph (2) in the matter preceding subparagraph (A), by striking December 31, 2017 December 31, 2025 (b) Conforming amendment The heading for section 404(b)(1) of the FISA Amendments Act of 2008 ( Public Law 110–261 December 31, 2017 December 31, 2025 3. Congressional review and oversight of abouts collection (a) In general Section 702(b) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a(b) (1) in paragraph (4), by striking and (2) by redesignating paragraph (5) as paragraph (6); and (3) by inserting after paragraph (4) the following: (5) may not intentionally acquire communications that contain a reference to, but are not to or from, a facility, place, premises, or property at which an acquisition authorized under subsection (a) is directed or conducted, except as provided under subsection (m); and . (b) Congressional review and oversight of communications of abouts collection Section 702 of the Foreign Intelligence Surveillance Act ( 50 U.S.C. 1881a (m) Congressional review and oversight of abouts collection (1) Definitions In this subsection: (A) Abouts communication The term abouts communication (B) Material breach The term material breach (C) Qualifying legislation The term qualifying legislation (i) the title of which is as follows A bill to prohibit the acquisition of abouts communications. (ii) the matter after the enacting clause of which is as follows: Congress disapproves the intentional acquisition under section 702 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a (2) Submission to Congress (A) Requirement Notwithstanding any other provision of law, and except as provided in paragraph (5), if the Attorney General and the Director of National Intelligence intend to implement the authorization of the intentional acquisition of abouts communications, before the first such implementation after the date of enactment of this subsection, the Attorney General and the Director of National Intelligence shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a written notice of the intent to implement the authorization of such an acquisition, and any supporting materials in accordance with this subsection. (B) Congressional review period During the 30-day period beginning on the date written notice is submitted under subparagraph (A), the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives shall, as appropriate, hold hearings and briefings and otherwise obtain information in order to fully review the written notice. (C) Limitation on action during congressional review period Notwithstanding any other provision of law, and subject to paragraph (5), unless the Attorney General and the Director of National Intelligence make a determination pursuant to subsection (c)(2), the Attorney General and the Director of National Intelligence may not implement the authorization of the intentional acquisition of abouts communications before the end of the period described in subparagraph (B). (D) Effect of enactment of disapproval If qualifying legislation is enacted during the 30-day period described in subparagraph (B), the Attorney General and the Director of National Intelligence may not implement the authorization of the intentional acquisition of abouts communications. (E) Effect of failure to enact disapproval If qualifying legislation is not enacted during the 30-day period described in subparagraph (B), after the end of such period, the Attorney General and the Director of National Intelligence may implement the authorization of the intentional acquisition of abouts communications. (3) Written notice Written notice under paragraph (2)(A) shall include the following: (A) A copy of any certification submitted to the Foreign Intelligence Surveillance Court pursuant to subsection (g), or amendment thereto, authorizing the intentional acquisition of abouts communications, including all affidavits, procedures, exhibits, and attachments submitted therewith. (B) The decision, order, or opinion of the Foreign Intelligence Surveillance Court approving such certification, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion. (C) A summary of the protections in place to detect any material breach. (D) Data or other results of modeling, simulation, or auditing of sample data demonstrating that any acquisition method involving the intentional acquisition of abouts communications shall be conducted in accordance with this title, if such data or other results exist at the time the written notice is submitted and were provided to the Foreign Intelligence Surveillance Court. (E) Except as provided under paragraph (5), a statement that no acquisition authorized under subsection (a) shall include the intentional acquisition of an abouts communication until after the end of the 30-day period described in paragraph (2)(B). (4) Expedited consideration of legislation (A) Introduction It shall be in order in the Senate and the House of Representatives, not later than 30 days after the date on which written notice is submitted under paragraph (2)(A), or notice of an emergency authorization is provided under paragraph (5), to introduce qualifying legislation, which shall be entitled to expedited consideration under this paragraph. (B) Consideration in the House of Representatives (i) Reporting and discharge Any committee of the House of Representatives to which qualifying legislation is referred shall report it to the House of Representatives not later than 10 legislative days after the date of the referral. (ii) Proceeding to consideration On and after the third legislative day after each committee to which qualifying legislation has been referred reports it to the House of Representatives from its further consideration, it shall be in order to move to proceed to consider the qualifying legislation. The motion to proceed to consideration of the qualifying legislation shall not be debatable. (C) Consideration in the Senate (i) Reporting and discharge Any committee of the Senate to which qualifying legislation is referred shall report it to the Senate not later than 10 days in which the Senate is in session after the date of the referral. (ii) Proceeding to consideration Notwithstanding rule XXII of the Standing Rules of the Senate, it is in order at any time after the committee to which qualifying legislation is referred reports it to the Senate (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the qualifying legislation. The motion to proceed to consideration of the qualifying legislation shall not be debatable. (iii) Consideration (I) In general If the Senate proceeds to the consideration of qualifying legislation, consideration of the qualifying legislation, and all amendments, debatable motions, and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between the majority and minority leaders or their designees. (II) Vote on passage The vote on passage shall occur immediately following the conclusion of the consideration of the qualifying legislation, and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate. (III) Consideration of veto messages Consideration in the Senate of any veto message with respect to qualifying legislation, including all debatable messages and appeals in connection therewith, shall be limited to 10 hours, to be equally divided between, and controlled by, the majority leader and the minority leader or their designees. (5) Exception for emergency acquisition (A) Notice of determination If the Attorney General and the Director of National Intelligence make a determination pursuant to subsection (c)(2) with respect to the intentional acquisition of abouts communications, the Attorney General and the Director of National Intelligence shall notify the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives as soon as practicable, but not later than 7 days after the determination is made. (B) Implementation or continuation (i) In general If the Foreign Intelligence Surveillance Court approves a certification that authorizes the intentional acquisition of abouts communications before the end of the 30-day period described in paragraph (2)(B) and qualifying legislation has not been enacted, the Attorney General and the Director of National Intelligence may authorize the immediate implementation or continuation of that certification if the Attorney General and the Director of National Intelligence jointly determine that exigent circumstances exist such that without such immediate implementation or continuation intelligence important to the national security of the United States may be lost or not timely acquired. (ii) Notice The Attorney General and Director of National Intelligence shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives notification of a determination pursuant to clause (i) as soon as practicable, but not later than 3 days after the determination is made. (6) Reporting of material breach The head of any agency involved in the acquisition of abouts communications shall fully and concurrently inform the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives of a material breach. . 4. Appointment of amici curiae by Foreign Intelligence Surveillance Court (a) In general Section 103(i)(2) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(i)(2) (1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively, and adjusting the margin accordingly; (2) in the matter before clause (i), as redesignated by paragraph (1), by striking A court established (A) In general A court established ; and (3) by adding at the end the following: (B) Presumption in section 702 certifications For purposes of subparagraph (A)(i), the first certification under section 702(g) or amendment thereto that authorizes the acquisition of communications that contain a reference to, but are not to or from, a facility, place, premises, or property at which an acquisition authorized under section 702(a) is directed or conducted, presents a novel or significant interpretation of the law, unless the court determines otherwise. . (b) Technical and conforming amendments Section 103(i) of such Act ( 50 U.S.C. 1803(i) (1) in paragraph (4), in the matter preceding subparagraph (A), by striking paragraph (2)(A) paragraph (2)(A)(i) (2) in paragraph (5), by striking paragraph (2)(A) paragraph (2)(A)(i) 5. Authorization for Foreign Intelligence Surveillance Court to compensate amici curiae and technical advisors for assistance provided Section 103(i) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(i) (11) Compensation Notwithstanding any other provision of law, a court established under subsection (a) or (b) may compensate an amicus curiae appointed under paragraph (2) for assistance provided under such paragraph as the court considers appropriate and at such rate as the court considers appropriate. . 6. Minimization and disclosure provisions (a) End use restriction Section 706(a) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881e(a) (1) by striking Information acquired (1) In general Information acquired ; and (2) by adding at the end the following: (2) United States persons (A) In general Any communication to, from, or which contains a reference to a United States person acquired under section 702 shall not be used in evidence against that United States person in any criminal proceeding unless 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— (I) death; (II) kidnapping; (III) serious bodily injury, as defined in section 1365 of title 18, United States Code; (IV) conduct that constitutes a criminal offense that is a specified offense against a minor, as defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 ( 34 U.S.C. 20911 (V) incapacitation or destruction of critical infrastructure, as defined in section 1016(e) of the USA PATRIOT Act ( 42 U.S.C. 5195c(e) (VI) cybersecurity, including conduct described in section 1016(e) of the USA PATRIOT Act ( 42 U.S.C. 5195c(e) (VII) transnational crime, including transnational narcotics trafficking and transnational organized crime; or (VIII) human trafficking. (B) No judicial review A determination by the Attorney General under subparagraph (A) is not subject to judicial review. . (b) Intelligence community disclosure provision Section 603 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1873 (1) in subsection (b)— (A) in paragraph (1), by striking good faith estimate of the number of targets of such orders; (A) the number of targets of such orders; (B) the number of targets of such orders who are known to not be United States persons; and (C) the number of targets of such orders who are known to be United States persons; ; (B) in paragraph (2)— (i) by redesignating subparagraphs (A) and (B) as subparagraphs (B) and (C), respectively; (ii) by inserting before subparagraph (B), as so redesignated, the following: (A) the number of targets of such orders; ; (iii) in subparagraph (B), as so redesignated, by striking and (iv) by adding at the end the following: (D) the number of instances in which the Federal Bureau of Investigation has received and reviewed the unminimized contents of electronic communications or wire communications concerning a United States person obtained through acquisitions authorized under such section in response to a search term that was reasonably designed to find evidence of a crime that would not be considered foreign intelligence information; and (E) the number of instances in which the Federal Bureau of Investigation opened, under the Criminal Investigative Division or any successor division, an investigation of a United States person (who is not considered a threat to national security) based wholly or in part on an acquisition authorized under such section; ; (C) in paragraph (3)(A), by striking orders; and (i) the number of targets of such orders who are known to not be United States persons; and (ii) the number of targets of such orders who are known to be United States persons; and ; (D) by redesignating paragraphs (4), (5), and (6) as paragraphs (5), (6), and (7), respectively; and (E) by inserting after paragraph (3) the following: (4) the number of criminal proceedings in which the United States or a State or political subdivision thereof provided notice pursuant to subsection (c) or (d) of section 106 (including with respect to information acquired from an acquisition conducted under section 702) or subsection (d) or (e) of section 305 of the intent of the government to enter into evidence or otherwise use or disclose any information obtained or derived from electronic surveillance, physical search, or an acquisition conducted pursuant to this Act; ; and (2) in subsection (d)— (A) in paragraph (1), by striking (4), or (5) (5), or (6) (B) in paragraph (2)(A), by striking (2)(A), (2)(B), and (5)(C) (2)(B), (2)(C), and (6)(C) (C) in paragraph (3)(A), in the matter preceding clause (i), by striking subsection (b)(2)(B) subsection (b)(2)(C) 7. Querying procedures required (a) In general Section 702 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a (1) by redesignating subsections (f) through (m) as subsections (g) through (n), respectively; (2) by inserting after subsection (e) the following: (f) Querying procedures (1) Procedures required (A) In general The Attorney General, in consultation with the Director of National Intelligence, shall adopt querying procedures for queries of data collected pursuant to an authorization under subsection (a). (B) Record of queries The Attorney General, in consultation with the Director of National Intelligence, shall ensure that the procedures adopted under subparagraph (A) include a technical procedure whereby a record is kept of all queries using a known United States person identifier. (2) Judicial review The querying procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (j). (3) Query defined In this subsection, the term query . (b) Conforming amendments (1) Amendments to section 702 of the Foreign Intelligence Surveillance Act of 1978 Such section is further amended— (A) in subsection (a), by striking with subsection (i)(3) with subsections (j)(3) (B) in subsection (c)— (i) in paragraph (1)(B), by striking with subsection (g) with subsection (h) (ii) in paragraph (2), by striking to subsection (i)(3) to subsection (j)(3) (iii) in paragraph (3)— (I) in subparagraph (A), by striking with subsection (g) with subsection (h) (II) in subparagraph (B)— (aa) by striking to subsection (i)(1)(C) to subsection (j)(1)(C) (bb) by striking under subsection (i) under subsection (j) (C) in subsection (d)(2), by striking to subsection (i) to subsection (j) (D) in subsection (e)(2), by striking to subsection (i) to subsection (j) (E) in subsection (h), as redesignated by subsection (a)(1)— (i) in paragraph (2)(A)(iii), by striking with subsection (f) with subsection (g) (ii) in paragraph (3), by striking with subsection (i)(1)(C) with subsection (j)(1)(C) (iii) in paragraph (6), by striking to subsection (i) to subsection (j) (F) in subsection (j), as redesignated by subsection (a)(1)— (i) in paragraph (1)— (I) in subparagraph (A), by striking targeting and minimization procedures adopted in accordance with subsections (d) and (e) targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f) (II) in subparagraph (B), by striking targeting and minimization procedures adopted in accordance with subsections (d) and (e) targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f) (III) in subparagraph (C), by striking targeting and minimization procedures adopted in accordance with subsections (d) and (e) targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f) (ii) in paragraph (2)— (I) in subparagraph (A), by striking with subsection (g) with subsection (h) (II) by adding at the end the following: (D) Querying procedures The querying procedures adopted in accordance with subsection (f) to assess whether such procedures comply with the requirements of such subsection. ; (iii) in paragraph (3)— (I) in subparagraph (A)— (aa) by striking with subsection (g) with subsection (h) (bb) by striking targeting and minimization procedures adopted in accordance with subsections (d) and (e) targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f) (II) in subparagraph (B), in the matter before clause (i)— (aa) by striking with subsection (g) with subsection (h) (bb) by striking with subsections (d) and (e) with subsections (d), (e), and (f) (iv) in paragraph (5)(A)— (I) by striking with subsection (g) with subsection (h) (II) by striking with subsections (d) and (e) with subsections (d), (e), and (f) (G) in subsection (m), as redesignated by subsection (a)(1)— (i) in paragraph (1), in the matter before subparagraph (A)— (I) by striking targeting and minimization procedures adopted in accordance with subsections (d) and (e) targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f) (II) by striking with subsection (f) with subsection (g) (ii) in paragraph (2)(A)— (I) by striking targeting and minimization procedures adopted in accordance with subsections (d) and (e) targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f) (II) by striking with subsection (f) with subsection (g) (2) Amendments to Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 Section 404 of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 ( Public Law 110–261 50 U.S.C. 1801 (A) in subsection (a)(7)(B)— (i) by striking under section 702(i)(3) under section 702(j)(3) (ii) by striking under section 702(i)(4) under section 702(j)(4) (B) in subsection (b)— (i) in paragraph (3)— (I) in subparagraph (A), by striking in section 702(h) in section 702(i) (II) in subparagraph (B)— (aa) by striking section 702(h)(3) of section 702(i)(3) of (bb) by striking to section 702(h) to section 702(i) (ii) in paragraph (4)— (I) in subparagraph (A), by striking and sections 702(l) and sections 702(m) (II) in subparagraph (B)(iv), by striking or section 702(l) or section 702(m) 8. Review of queries conducted by Federal Bureau of Investigation of acquisitions obtained under section 702 of the Foreign Intelligence Surveillance Act of 1978 (a) In general Section 702 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a (o) Review of queries conducted by Federal Bureau of Investigation (1) Submittal Not later than 1 business day after the Director of the Federal Bureau of Investigation conducts a query of acquisitions obtained under this section which the Director finds to have been responsive and which returns information that concerns a known United States person, the Director of the Federal Bureau of Investigation shall submit to the Foreign Intelligence Surveillance Court the query, the responsive information, and a justification for executing the query. (2) Review Not later than 2 business days after receiving a submittal under paragraph (1), the Foreign Intelligence Surveillance Court shall review the submittal for consistency with the Fourth Amendment to the Constitution and submit to the Director the findings of the Court with respect to the review. (3) Prohibition on use of information responsive to improper queries If the Foreign Intelligence Surveillance Court determines under paragraph (2) that a submittal received under paragraph (2) regarding information responsive to a query is not consistent with the Fourth Amendment, such information shall not be used in any court proceeding. (4) Annual report Not less frequently than once each year, the Foreign Intelligence Surveillance Court shall submit to the congressional intelligence committees (as defined in section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 . (b) Rule of construction Subsection (o) of such section, as added by subsection (a), shall not be construed to require any action to determine the nationality of an individual that would not have been required to be carried out on the day before the date of the enactment of this Act. (c) Effective date Subsection (o) of such section, as added by subsection (a), shall take effect on the date that is 90 days after the date of the enactment of this Act. 9. Section 705 emergency provision Section 705 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881d (c) Emergency authorization If the Attorney General authorized the emergency employment of electronic surveillance or a physical search pursuant to section 105 or 304, the Attorney General may authorize, for the effective period of the emergency authorization and subsequent order pursuant to section 105 or 304, without a separate order under section 703 or 704, the targeting of the United States person that is the target for the purpose of acquiring foreign intelligence information while such United States person is reasonably believed to be located outside the United States. (d) Use of information If an application submitted to the Court pursuant to section 104 or 303 is denied, or in any other case in which the acquisition is terminated and no order with respect to the target of the acquisition is issued under section 105 or 304, all information obtained or evidence derived from such acquisition shall be handled in accordance with section 704(d)(4). . 10. Privacy and Civil Liberties Oversight Board reform Section 552b(a)(1) of title 5, United States Code, is amended— (1) by striking term agency (A) means ; (2) by inserting and the agency; (3) by adding at the end the following: (B) does not include the Privacy and Civil Liberties Oversight Board; . 11. Flexibility for Privacy and Civil Liberties Oversight Board in staffing matters Section 1061(j) of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 42 U.S.C. 2000ee(j) (1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and (2) by inserting after paragraph (1) the following new paragraph: (2) Appointment in absence of chairman or absence of a quorum If the position of chairman of the Board is vacant or a quorum is absent, during the period of the vacancy or vacancies, the Board, at the direction of the unanimous vote of the remaining member or members of the Board, may exercise the authority of the chairman under paragraph (1). . 12. Increased penalties for unauthorized removal and retention of classified documents or material Section 1924(a) of title 18, United States Code, is amended by striking fined both fined under this title, imprisoned for not more than 10 years, or both October 25, 2017 Read twice and placed on the calendar

Summary: FISA Amendments Reauthorization Act of 2017 This bill amends the FISA Amendments Act of 2008 to extend the Act through December 31, 2025. The bill prohibits the intelligence community from intentionally acquiring a communication about a non-U.S. entity if the communication contains a reference to the entity but is not from or directed to that entity (this kind of communications collecting is called abouts collection) unless the Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI) submit to Congress a written notice of the intent to implement the authorization of such communications collection. The notice triggers a 30-day congressional review period that requires Congress to pass specific legislation in order to prohibit the authorization of such communications collection. Information obtained about a U.S. person through an abouts collection can only be used against that U.S. person for specified criminal proceedings. The bill allows the FISA court's amici curiae (lawyers who argue against the government's FISA requests) to participate in matters pertaining to abouts collection. DOJ and the ODNI must create procedures and keep records pertaining to queries, which are searches done with data the government already acquired and use a specific search term for the purpose of discovering or retrieving content or metadata.  The bill exempts the Privacy and Civil Liberties Oversight Board from certain open meetings laws. The penalty for the unauthorized removal of classified documents or materials is increased to up to 10 years in prison.