USA FREEDOM Reauthorization Act of 2020

To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the production of certain business records, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the USA FREEDOM Reauthorization Act of 2020 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Amendments to the Foreign Intelligence Surveillance Act of 1978. TITLE I—FISA Business Records Sec. 101. Repeal of authority to access on an ongoing basis call detail records. Sec. 102. Civil liberties protections in use of authority to access business records. Sec. 103. Protection of information otherwise requiring warrant. Sec. 104. Protecting Fourth Amendment rights of United States persons. Sec. 105. Use of information. Sec. 106. Exclusions from authority to access business records. Sec. 107. Effective date. TITLE II—Foreign Intelligence Surveillance Court Sec. 201. Declassification of significant decisions, orders, and opinions. Sec. 202. Appointment of amici curiae and access to information. Sec. 203. Disclosure of relevant information; Inspector General oversight. Sec. 204. Information provided in annual reports. TITLE III—Other Matters Sec. 301. Mandatory reporting on certain orders. Sec. 302. Improvements to Privacy and Civil Liberties Oversight Board. Sec. 303. Report on use of FISA authorities regarding protected activities and protected classes. Sec. 304. Sunsets. Sec. 305. Technical amendments. 2. Amendments to the Foreign Intelligence Surveillance Act of 1978 Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or a repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 I FISA Business Records 101. Repeal of authority to access on an ongoing basis call detail records (a) Call detail records (1) Repeal Section 501(b)(2) ( 50 U.S.C. 1861(b)(2) (A) by striking subparagraph (C); (B) in subparagraph (B)— (i) in the matter preceding clause (i), by striking in the case of in subparagraph (C)), (ii) in clause (iii), by striking the semicolon at the end and inserting ; and (C) by redesignating subparagraph (D) as subparagraph (C). (2) Prohibition Section 501(a) ( 50 U.S.C. 1861(a) (4) An application under paragraph (1) may not seek an order authorizing or requiring the production on an ongoing basis of call detail records. . (b) Conforming amendments (1) Orders Section 501(c) ( 50 U.S.C. 1861(c) (A) in paragraph (1), by striking with subsection (b)(2)(D) with subsection (b)(2)(C) (B) in paragraph (2), by striking subparagraph (F) and inserting the following: (F) in the case of an application for call detail records, shall direct the Government— (i) to adopt minimization procedures that require the prompt destruction of all call detail records produced under the order that the Government determines are not foreign intelligence information; and (ii) to destroy all call detail records produced under the order as prescribed by such procedures. . (2) Compensation Section 501(j) ( 50 U.S.C. 1861(j) (j) Compensation The Government shall compensate a person for reasonable expenses incurred for providing technical assistance to the Government under this section. . (3) Definitions Section 501(k)(4)(B) ( 50 U.S.C. 1861(k)(4)(B) For purposes of an application submitted under subsection (b)(2)(C) In the case of an application for a call detail record (4) Oversight Section 502(b) ( 50 U.S.C. 1862(b) (A) by striking paragraph (4); and (B) by redesignating paragraphs (5) through (8) as paragraphs (4) through (7), respectively. (5) Annual reports Section 603 ( 50 U.S.C. 1873 (A) in subsection (b)— (i) by transferring subparagraph (C) of paragraph (6) to the end of paragraph (5); (ii) in paragraph (5)— (I) in subparagraph (A), by striking ; and (II) in subparagraph (B), by striking the semicolon and inserting ; and (III) in subparagraph (C), as transferred by clause (i) of this subparagraph, by striking any database of (iii) by striking paragraph (6); and (iv) by redesignating paragraph (7) as paragraph (6); and (B) in subsection (d)— (i) in paragraph (1), by striking any of paragraphs (3), (5), or (6) either of paragraphs (3) or (5) (ii) in paragraph (2)(A), by striking Paragraphs (2)(B), (2)(C), and (6)(C) Paragraphs (2)(B) and (2)(C) (6) Public reporting Section 604(a)(1)(F) ( 50 U.S.C. 1874(a)(1)(F) (A) in clause (i), by striking the semicolon and inserting ; and (B) in clause (ii), by striking ; and (C) by striking clause (iii). 102. Civil liberties protections in use of authority to access business records Section 501(a)(2)(B) ( 50 U.S.C. 1861(a)(2)(B) solely substantially 103. Protection of information otherwise requiring warrant Section 501(a) ( 50 U.S.C. 1861(a) (5) An application under paragraph (1) may not seek an order authorizing or requiring the production of a tangible thing if the compelled production of such thing would require a warrant for law enforcement purposes. . 104. Protecting Fourth Amendment rights of United States persons Section 501(b) ( 50 U.S.C. 1861(b) (1) in paragraph (1), by striking and (2) in paragraph (2), by striking the period at the end and inserting ; and (3) by adding at the end the following: (3) for an order seeking information concerning a known United States person shall demonstrate probable cause to believe that the person— (A) is an agent of a foreign power; or (B) has been or will soon be involved in an act of terrorism or in clandestine intelligence activities in violation of the law. . 105. Use of information Section 501(h) ( 50 U.S.C. 1861(h) (1) by striking Information acquired (1) In general Information acquired ; and (2) by adding at the end the following: (2) Use in trials, hearings, or other proceedings For purposes of subsections (b) through (h) of section 106— (A) information obtained or derived from the production of tangible things pursuant to an investigation conducted under this section shall be deemed to be information acquired from an electronic surveillance pursuant to title I; and (B) in carrying out subparagraph (A), a person shall be deemed to be an aggrieved person if— (i) the person is the target of such an investigation; or (ii) the activities or communications of the person are described in any tangible thing collected pursuant to such an investigation. . 106. Exclusions from authority to access business records Section 501(k) ( 50 U.S.C. 1861(k) (5) The term tangible thing (A) Location information, including cell site location and global positioning system information. (B) Internet use information, including website browsing information and internet search history information. (C) Medical and health-related records. . 107. Effective date The amendments made by this title shall take effect on the date of enactment of this Act and shall apply with respect to applications made under section 501 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861 II Foreign Intelligence Surveillance Court 201. Declassification of significant decisions, orders, and opinions (a) Timing of declassification Section 602(a) ( 50 U.S.C. 1872(a) The Director shall complete the declassification review and public release of each such decision, order, or opinion by not later than 180 days after the date on which the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review issues such decision, order, or opinion. (b) Matters covered Section 602(a) ( 50 U.S.C. 1872(a) (1) by striking Subject to subsection (b) (1) Subject to subsection (b) (2) by striking includes a significant , and, is described in paragraph (2) and, (3) by adding at the end the following: (2) The decisions, orders, or opinions issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review described in this paragraph are such decisions, orders, or opinions that— (A) include a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of— (i) the term specific selection term (ii) section 501(a)(5); or (B) result from a proceeding in which an amicus curiae has been appointed pursuant to section 103(i). . (c) Application of requirement (1) In general Section 602 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1872 (2) Past decisions, orders, and opinions With respect to each decision, order, or opinion described in paragraph (1) that was issued before or on the date of enactment referred to in that paragraph, the Director of National Intelligence shall complete the declassification review and public release of the decision, order, or opinion pursuant to section 602 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1872 202. Appointment of amici curiae and access to information (a) Expansion of appointment authority (1) In general Section 103(i)(2) ( 50 U.S.C. 1803(i)(2) (A) shall appoint an individual who has been designated under paragraph (1) and who possesses expertise in privacy and civil liberties to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court— (i) presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate; (ii) presents significant concerns with respect to the activities of a United States person that are protected by the First Amendment to the Constitution of the United States, unless the court issues a finding that such appointment is not appropriate; (iii) presents or involves a sensitive investigative matter, unless the court issues a finding that such appointment is not appropriate; (iv) presents a request for approval of a new program, a new technology, or a new use of existing technology, unless the court issues a finding that such appointment is not appropriate; (v) presents a request for reauthorization of programmatic surveillance, unless the court issues a finding that such appointment is not appropriate; or (vi) otherwise presents civil liberties issues, unless the court issues a finding that such appointment is not appropriate; and . (2) Definition of sensitive investigative matter Section 103(i) ( 50 U.S.C. 1803(i) (12) Definition In this subsection, the term sensitive investigative matter (A) an investigative matter involving the activities of— (i) a domestic public official or political candidate; (ii) a domestic religious or political organization, or an individual prominent in such an organization; or (iii) the domestic news media; or (B) any other investigative matter that, in the judgment of the applicable court established under subsection (a) or (b), is as sensitive as an investigative matter described in subparagraph (A). . (b) Authority To seek review Section 103(i) ( 50 U.S.C. 1803(i) (1) in paragraph (4)— (A) in the paragraph heading, by inserting ; authority Duties (B) by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), and (iii), respectively, and adjusting the margins accordingly; (C) in the matter preceding clause (i), as so designated, by striking the amicus curiae shall the amicus curiae— (A) shall ; (D) in subparagraph (A)(i), as so designated, by inserting before the semicolon at the end the following: , including legal arguments regarding any colorable privacy or civil liberties interest of any aggrieved United States person (E) by striking the period at the end and inserting the following: ; and (B) may raise any issue with the court at any time, regardless of whether the court has requested assistance on that issue. ; (2) by redesignating paragraphs (7) through (12) as paragraphs (8) through (13), respectively; and (3) by inserting after paragraph (6) the following: (7) Authority to seek review of decisions (A) FISA court decisions (i) Petition Following issuance of an order under this Act by the Foreign Intelligence Surveillance Court, an amicus curiae appointed under paragraph (2) may petition the court to certify for review to the Foreign Intelligence Surveillance Court of Review a question of law pursuant to subsection (j). (ii) Appointment Upon certification of any question of law pursuant to this subparagraph, the Court of Review shall appoint the amicus curiae to assist the Court of Review in its consideration of the certified question, unless the Court of Review issues a finding that such appointment is not appropriate. (B) FISA Court of Review decisions An amicus curiae appointed under paragraph (2) may file a petition for a writ of certiorari from the Supreme Court of the United States for review of any decision by the Foreign Intelligence Surveillance Court of Review. (C) Declassification of referrals For purposes of section 602, a petition filed under subparagraph (A) or (B) of this paragraph and all of its content shall be considered a decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review described in paragraph (2) of section 602(a). . (c) Access to information (1) Application and materials Section 103(i)(6)(A) ( 50 U.S.C. 1803(i)(6)(A) (i) shall have access to— (I) the application, certification, petition, motion, and other information and supporting materials, submitted to the Foreign Intelligence Surveillance Court in connection with the matter in which the amicus curiae has been appointed, including access to any relevant legal precedent (including any such precedent that is cited by the Government, including in such an application); (II) any other information or materials that the court determines is relevant to the duties of the amicus curiae; and (III) an unredacted copy of each relevant decision made by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review in which the court decides a question of law, without regard to whether the decision is classified; and (ii) may make a submission to the court requesting access to any particular materials or information (or category of materials or information) that the amicus curiae believes to be relevant to the duties of the amicus curiae. . (2) Clarification of access to certain information Section 103(i)(6) ( 50 U.S.C. 1803(i)(6) (A) in subparagraph (B), by striking may shall (B) by striking subparagraph (C) and inserting the following: (C) Classified information An amicus curiae designated or appointed by the court shall have access to unredacted copies of each opinion, order, transcript, pleading, or other document of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review, including, if the individual is eligible for access to classified information, any classified documents, information, and other materials or proceedings. . (3) Consultation among amici curiae Section 103(i)(6) ( 50 U.S.C. 1803(i)(6) (A) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and (B) by inserting after subparagraph (A) the following: (B) Consultation If the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review determines that it is relevant to the duties of an amicus curiae appointed under paragraph (2), the amicus curiae may consult with one or more of the other individuals designated by the court to serve as amicus curiae pursuant to paragraph (1) regarding any of the information relevant to any assigned proceeding. . 203. Disclosure of relevant information; Inspector General oversight (a) Disclosure of relevant information (1) In general The Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 IX Disclosure of relevant information 901. Disclosure of relevant information The Attorney General or any other Federal officer making an application for a court order under this Act shall provide the court with all information in the possession of the Government that is material to determining whether the application satisfies the applicable requirements under this Act, including any exculpatory information. . (2) Technical amendment The table of contents of the Foreign Intelligence Surveillance Act of 1978 is amended by adding at the end the following: Title IX—DISCLOSURE OF RELEVANT INFORMATION Sec. 901. Disclosure of relevant information. . (b) Inspector General oversight (1) In general Title VI ( 50 U.S.C. 1871 605. Inspector General oversight (a) Annual audit Each year, the Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community shall each conduct an audit of the applications for court orders made by the Department or the element, respectively, under this Act during the preceding year. (b) Scope; contents In conducting an audit under subsection (a), an Inspector General shall— (1) review a random sampling of applications made by the Department or element, respectively; and (2) assess whether— (A) the assertions made in each application were adequately supported by evidence; (B) each application included all material information, including any exculpatory information, as required under section 901; and (C) each application meets constitutional and legal requirements. . (2) Technical amendment The table of contents of the Foreign Intelligence Surveillance Act of 1978 is amended by inserting after the item relating to section 604 the following: Sec. 605. Inspector General oversight. . 204. Information provided in annual reports (a) Reports by Director of the Administrative Office of the United States Courts Section 603(a)(1) ( 50 U.S.C. 1873(a)(1) (1) in subparagraph (E), by striking ; and (2) in subparagraph (F), by striking the period at the end and inserting a semicolon; and (3) by adding at the end the following: (G) the number of certifications by the Foreign Intelligence Surveillance Court of Review pursuant to section 103(j); and (H) the number of requests to certify a question made by an amicus curiae to the Foreign Intelligence Surveillance Court of Review pursuant to section 103(i)(7). . (b) Reports by Director of National Intelligence Section 603(b)(5)(B) ( 50 U.S.C. 1873(b)(5)(B) , including information received electronically and through hard copy and portable media III Other Matters 301. Mandatory reporting on certain orders (a) Reporting on United States person queries Section 603(b)(2) ( 50 U.S.C. 1873(b)(2) (1) in subparagraph (B), by striking the number of search terms concerning a known United States person the number of search terms that concern a known United States person or are reasonably likely to identify a United States person (2) in subparagraph (C), by striking the number of queries concerning a known United States person the number of queries that concern a known United States person or are reasonably likely to identify a United States person (b) Modification to exceptions Section 603(d)(2) ( 50 U.S.C. 1873(d)(2) information Paragraph (3)(B) information 302. Improvements to Privacy and Civil Liberties Oversight Board Section 1061(h)(4) of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 42 U.S.C. 2000ee(h)(4) (4) Term (A) Commencement Each member of the Board shall serve a term of 6 years, commencing on the date of the appointment of the member to the Board. (B) Reappointment A member may be reappointed to 1 or more additional terms. (C) Vacancy A vacancy in the Board shall be filled in the manner in which the original appointment was made. (D) Extension Upon the expiration of the term of office of a member, the member may continue to serve, at the election of the member— (i) during the period preceding the reappointment of the member pursuant to subparagraph (B); or (ii) until the earlier of— (I) the date on which the member’s successor has been appointed and qualified; or (II) the date that is 2 years after the expiration of the member's term of office. . 303. Report on use of FISA authorities regarding protected activities and protected classes (a) Report Not later than 1 year after the date of enactment of this Act, the Privacy and Civil Liberties Oversight Board shall make publicly available and submit to the appropriate congressional committees a report on the use of activities and protected classes described in subsection (b) in— (1) applications for orders made by the United States Government under the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (2) investigations for which such orders are sought. (b) Activities and protected classes described The activities and protected classes described in this subsection are the following: (1) Activities and expression protected by the First Amendment to the Constitution of the United States. (2) Race, ethnicity, national origin, and religious affiliation. (c) Form In addition to the report made publicly available and submitted under subsection (a), the Board may submit to the appropriate congressional committees a classified annex. (d) Appropriate congressional committees defined In this section, the term appropriate congressional committees (1) the Committee on the Judiciary and the Select Committee on Intelligence of the Senate; and (2) the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives. 304. Sunsets (a) USA PATRIOT Improvement and Reauthorization Act of 2005 Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 ( 50 U.S.C. 1805 March 15, 2020 December 1, 2023 (b) Intelligence Reform and Terrorism Prevention Act of 2004 Section 6001(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 50 U.S.C. 1801 March 15, 2020 December 1, 2023 (c) Effective date The amendments made by this section shall take effect on the earlier of the date of enactment of this Act or March 15, 2020. 305. Technical amendments (a) In general The Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (1) In section 103(e) ( 50 U.S.C. 1803(e) 702(h)(4) 702(i)(4) (2) In section 105(a)(4) ( 50 U.S.C. 1805(a)(4) (A) by striking section 104(a)(7)(E) section 104(a)(6)(E) (B) by striking section 104(d) section 104(c) (3) In section 501(a) ( 50 U.S.C. 1861(a) (4) In section 603(b)(2)(C) ( 50 U.S.C. 1873(b)(2)(C) and (5) In section 702 ( 50 U.S.C. 1881a (A) in subsection (h)(3), by striking subsection (i) subsection (j) (B) in subsection (j)(1), by striking subsection (g) subsection (h) (C) in the subsection heading of subsection (m), by inserting a comma after Assessments (6) In section 801(8)(B)(iii) ( 50 U.S.C. 1885(8)(B)(iii) 702(h) 702(i) (7) In section 802(a)(3) ( 50 U.S.C. 1885a(a)(3) 702(h) 702(i) (b) References to Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review (1) Definitions Section 101 ( 50 U.S.C. 1801 (q) The term Foreign Intelligence Surveillance Court (r) The terms Foreign Intelligence Surveillance Court of Review Court of Review . (2) Conforming amendments The Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (A) in section 102(a)(3) ( 50 U.S.C. 1802(a)(3) the court established under section 103(a) the Foreign Intelligence Surveillance Court (B) in section 103 ( 50 U.S.C. 1803 (i) in subsection (a)— (I) in paragraph (2)(A), by striking The court established under this subsection The Foreign Intelligence Surveillance Court (II) by striking the court established under this subsection the Foreign Intelligence Surveillance Court (ii) in subsection (g)— (I) by striking the court established pursuant to subsection (a) the Foreign Intelligence Surveillance Court (II) by striking the court of review established pursuant to subsection (b) the Foreign Intelligence Surveillance Court of Review (III) by striking The courts established pursuant to subsections (a) and (b) The Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (iii) in subsection (h), by striking a court established under this section the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (iv) in subsection (i)— (I) in paragraph (1), by striking the courts established under subsections (a) and (b) the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (II) in paragraph (3)(B), by striking the courts the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (III) in paragraph (5), by striking the court the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review, as the case may be, (IV) in paragraph (6), by striking the court the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (V) by striking a court established under subsection (a) or (b) the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (VI) by striking A court established under subsection (a) or (b) The Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (v) in subsection (j)— (I) by striking a court established under subsection (a) the Foreign Intelligence Surveillance Court (II) by striking the court determines the Foreign Intelligence Surveillance Court determines (vi) by striking the court established under subsection (a) the Foreign Intelligence Surveillance Court (vii) by striking the court established under subsection (b) the Foreign Intelligence Surveillance Court of Review (C) in section 105(c) ( 50 U.S.C. 1805(c) (i) in paragraph (2)(B), by striking the Court the Foreign Intelligence Surveillance Court (ii) in paragraph (3), by striking the court the Foreign Intelligence Surveillance Court (D) in section 401 ( 50 U.S.C. 1841 , and State State Foreign Intelligence Surveillance Court Foreign Intelligence Surveillance Court of Review (E) in section 402 ( 50 U.S.C. 1842 (i) in subsection (b)(1), by striking the court established by section 103(a) of this Act the Foreign Intelligence Surveillance Court (ii) in subsection (h)(2), by striking the court established under section 103(a) the Foreign Intelligence Surveillance Court (F) in section 501 ( 50 U.S.C. 1861 (i) in subsection (b)(1), by striking the court established by section 103(a) the Foreign Intelligence Surveillance Court (ii) in subsection (g)(3), by striking the court established under section 103(a) the Foreign Intelligence Surveillance Court (iii) in subsection (k)(1), by striking , and State State Foreign Intelligence Surveillance Court (G) in section 502(c)(1)(E), by striking the court established under section 103 the Foreign Intelligence Surveillance Court (as defined by section 101) (H) in section 801 ( 50 U.S.C. 1885 (i) in paragraph (8)(B)(i), by striking the court established under section 103(a) the Foreign Intelligence Surveillance Court (ii) by adding at the end the following: (10) Foreign Intelligence Surveillance Court The term Foreign Intelligence Surveillance Court ; and (I) in section 802(a)(1) ( 50 U.S.C. 1885a(a)(1) the court established under section 103(a) the Foreign Intelligence Surveillance Court (c) Coordination with other amendments made by this Act For purposes of applying amendments made by provisions of this Act other than this section, the amendments made by this section shall be treated as having been enacted immediately before any such amendments by other provisions of this Act.

Summary: USA FREEDOM Reauthorization Act of 2020 This bill modifies provisions related to foreign intelligence surveillance. Among other things, the bill (1) repeals authorities providing for ongoing access to call detail records; (2) requires the Office of the Director of National Intelligence to decide whether to declassify a significant Foreign Intelligence Surveillance Court decision within 180 days of the decision; and (3) requires government officers to disclose all relevant information, including any exculpatory information, when applying for a court order under certain foreign surveillance authorities.