Safeguarding Americans' Private Records Act of 2020

To amend the Foreign Intelligence Surveillance Act of 1978 to protect privacy rights, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the Safeguarding Americans' Private Records Act of 2020 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Reform and oversight of authority to access certain business records for foreign intelligence and international terrorism investigations and for roving surveillance Subtitle A—Reform and oversight of authority To access certain business records for foreign intelligence and international terrorism investigations Sec. 101. Repeal of authority to access on an ongoing basis business records for foreign intelligence and international terrorism investigations. Sec. 102. Exclusion of cell site location and global positioning system information from authority to access business records for foreign intelligence and international terrorism investigations. Sec. 103. Exclusion of internet website browsing and internet search history information from authority to access business records for foreign intelligence and international terrorism investigations. Sec. 104. Exclusion from authority to access business records for foreign intelligence and international terrorism investigations of information that would otherwise require a warrant. Sec. 105. Modification of requirements relating to connection to foreign power for access business records for foreign intelligence and international terrorism investigations. Sec. 106. Justification for nondisclosure requirement concerning access business records for foreign intelligence and international terrorism investigations. Sec. 107. Limitations on retention of tangible things for foreign intelligence and international terrorism investigations. Sec. 108. Judicial review of compliance with minimization procedures for access to certain business records for foreign intelligence and international terrorism investigations. Sec. 109. Modification of requirement for Director of National Intelligence to report annually on matters relating to orders issued for production of tangible things for foreign intelligence and international terrorism investigations. Sec. 110. Limitations on use of information obtained under authority to access business records for foreign intelligence and international terrorism investigations. Sec. 111. Reforms relating to use of information. Sec. 112. Inspector General of Department of Justice report on use of activities protected by First Amendment in applications for production of business records for foreign intelligence and international terrorism investigations. Sec. 113. Annual report on waiver of prohibition on use of information obtained without an order for production of business records for foreign intelligence and international terrorism investigations. Subtitle B—Oversight on use of authority for roving surveillance Sec. 121. Inspector General of Department of Justice report on compliance with requirements relating to use of authority for electronic surveillance. Sec. 122. Annual report on waiver of prohibition on use of information obtained without an order for electronic surveillance. Subtitle C—Extension of authority To access certain business records for foreign intelligence and international terrorism investigations and for roving surveillance Sec. 131. Four-year extension of authority to access certain business records for foreign intelligence and international terrorism investigations and for roving surveillance. TITLE II—Additional reforms of authorities under Foreign Intelligence Surveillance Act of 1978 Sec. 201. Limitation on production of cell site location and global positioning system information under pen register and trap and trace authorities. Sec. 202. Extension of authority for individual terrorists to be treated as agents of foreign powers under Foreign Intelligence Surveillance Act of 1978. Sec. 203. Clarification regarding treatment of information acquired under Foreign Intelligence Surveillance Act of 1978. TITLE III—Reforms regarding Foreign Intelligence Surveillance Act Court and Privacy and Civil Liberties Oversight Board Sec. 301. Improved role in oversight of electronic surveillance by amici curiae appointed by courts under Foreign Intelligence Surveillance Act of 1978. Sec. 302. Reforms to the Foreign Intelligence Surveillance Court. Sec. 303. Study and report on diversity and representation on the FISA Court and the FISA Court of Review. Sec. 304. Reforms of the Privacy and Civil Liberties Oversight Board. Sec. 305. Clarification of applicability of requirement to declassify significant decisions of Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. TITLE IV—Sunset of National Security Letter authorities Sec. 401. Sunset of National Security Letter authority. TITLE V—Other matters Sec. 501. Limitation on collection without express statutory authority. I Reform and oversight of authority to access certain business records for foreign intelligence and international terrorism investigations and for roving surveillance A Reform and oversight of authority To access certain business records for foreign intelligence and international terrorism investigations 101. Repeal of authority to access on an ongoing basis business records for foreign intelligence and international terrorism investigations (a) In general Subsection (a) of section 501 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861 (4) The authority under paragraph (1) shall not include an application for an order requiring the production— (A) on an ongoing basis of any tangible things; or (B) of any tangible things other than those identified by the specific selection term included in the application pursuant to subsection (b)(2)(A). . (b) Conforming amendments Such Act is amended— (1) in section 501 ( 50 U.S.C. 1861 (A) in subsection (a)(1), by striking Subject to paragraph (3) Subject to the provisions of this subsection (B) in subsection (b)(2)— (i) by striking subparagraph (C); (ii) in subparagraph (B), by striking in the case of in subparagraph (C)), (iii) by redesignating subparagraph (D) as subparagraph (C); and (iv) in subparagraph (B)(iii), by striking the semicolon at the end and inserting ; and (C) in subsection (c)— (i) in paragraph (1), by striking with subsection (b)(2)(D) with subsection (b)(2)(C) (ii) 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. ; (D) by amending subsection (j) to read as follows: (j) Compensation The Government shall compensate a person for reasonable expenses incurred for providing technical assistance to the Government under this section. ; and (E) in subsection (k)(4)(B), by striking For purposes of an application submitted under subsection (b)(2)(C) In the case of an application for a call detail record (2) in 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; (3) in section 603(b)(6) ( 50 U.S.C. 1873(b)(6) (A) in the matter before subparagraph (A), by striking under section 501(b)(2)(C) under section 501(b)(2)(B) (B) in subparagraph (C), by striking any database of (4) in section 604(a)(1)(F) ( 50 U.S.C. 1874(a)(1)(F) (A) by striking clause (iii); (B) in clause (ii), by striking ; and (C) in clause (i), by striking the semicolon and inserting ; and (c) Technical correction Paragraph (3) of section 501(a) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861(a) (d) Effective date The amendments made by this section shall take effect on the date of the 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 102. Exclusion of cell site location and global positioning system information from authority to access business records for foreign intelligence and international terrorism investigations Section 501(k) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861(k) (5) The term tangible thing (A) Cell site location information. (B) Global positioning system information. . 103. Exclusion of internet website browsing and internet search history information from authority to access business records for foreign intelligence and international terrorism investigations Paragraph (5) of section 501(k) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861(k) (C) Internet website browsing information. (D) Internet search history information. . 104. Exclusion from authority to access business records for foreign intelligence and international terrorism investigations of information that would otherwise require a warrant Section 501(a) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861(a) (5) The authority under paragraph (1) shall not include an application for 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. . 105. Modification of requirements relating to connection to foreign power for access business records for foreign intelligence and international terrorism investigations Section 501(b)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861(b)(2)(B) (1) by inserting and material sought are relevant (2) by striking such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of facts that they and that such tangible things sought 106. Justification for nondisclosure requirement concerning access business records for foreign intelligence and international terrorism investigations (a) In general Section 501 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861 (1) in subsection (b)— (A) in paragraph (1)(B), by striking and (B) in paragraph (2)(D), by striking the period at the end and inserting ; and (C) by adding at the end the following: (3) if the applicant is seeking a nondisclosure requirement described in subsection (d), shall include— (A) the time period during which the Director of the Federal Bureau of Investigation believes the nondisclosure requirement should apply; (B) a statement of facts showing that there are reasonable grounds to believe that disclosure of particular information about the existence or contents of the order requiring the production of tangible things under this section during such time period will result in— (i) endangering the life or physical safety of any person; (ii) flight from investigation or prosecution; (iii) destruction of or tampering with evidence; (iv) intimidation of potential witnesses; (v) interference with diplomatic relations; (vi) alerting a target, an associate of a target, or the foreign power of which the target is an agent, of the interest of the Government in the target; or (vii) otherwise seriously endangering the national security of the United States; and (C) an explanation of how the nondisclosure requirement is narrowly tailored to address the specific harm identified under subparagraph (B). ; (2) in subsection (c), by adding at the end the following: (5) If a judge who issues an order under this subsection upon an application made pursuant to this section that includes a request for a nondisclosure requirement described in subsection (d) finds that the requirements of subsection (b)(3) have been met, such order shall include a nondisclosure requirement that applies for a period of up to 1 year, unless the judge determines that the facts justify a longer period of nondisclosure, subject to the principles and procedures described in subsection (d). ; and (3) by amending subsection (d) to read as follows: (d) Nondisclosure (1) In general No person who receives an order entered under subsection (c) that contains a nondisclosure requirement shall disclose to any person the particular information specified in the nondisclosure requirement during the time period to which the requirement applies. (2) Exception (A) In general A person who receives an order entered under subsection (c) that contains a nondisclosure requirement may disclose information otherwise subject to any applicable nondisclosure requirement to— (i) those persons to whom disclosure is necessary to comply with the order; (ii) an attorney to obtain legal advice or assistance regarding the order; or (iii) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director. (B) Application A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom an order is directed under this section in the same manner as the person to whom the order is directed. (C) Notice Any person who discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall notify the person of the applicable nondisclosure requirement. (D) Identification of disclosure recipients At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under clause (i) or (iii) of subparagraph (A) shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request. (3) Extension The Director of the Federal Bureau of Investigation, or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge), may apply for renewals of the prohibition on disclosure of particular information about the existence or contents of an order requiring the production of tangible things under this section for additional periods of not longer than 1 year, unless the facts justify a longer period of nondisclosure. A nondisclosure requirement shall be renewed if a court having jurisdiction under paragraph (4) determines that the statement of facts included in the application pursuant to subsection (b)(3)(B) is true and credible. (4) Jurisdiction An application for a renewal under this subsection shall be made to— (A) a judge of the court established under section 103(a); or (B) a United States Magistrate Judge under chapter 43 . (b) Conforming amendment Section 501(f)(1)(B) of such Act ( 50 U.S.C. 1861(f)(1)(B) an order imposed under subsection (d) a nondisclosure requirement imposed in connection with a production order 107. Limitations on retention of tangible things for foreign intelligence and international terrorism investigations Section 501(g)(2) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861(g)(2) (1) in subparagraph (B), by striking and (2) by redesignating subparagraph (C) as subparagraph (D); (3) by inserting after subparagraph (B) the following new subparagraph (C): (C) procedures that require that nonpublicly available information shall not be retained for more than three years unless determined to include foreign intelligence information; and ; and (4) in subparagraph (D), as redesignated by paragraph (2), by striking and (B) (B), and (C) 108. Judicial review of compliance with minimization procedures for access to certain business records for foreign intelligence and international terrorism investigations Section 501(c) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861(c) (6) Judicial review of compliance with minimization procedures At or before the end of the period for the production of tangible things under an order entered under this section or at any time after the production of tangible things under an order entered under this section, a judge may assess compliance with the minimization procedures required by such order by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated. . 109. Modification of requirement for Director of National Intelligence to report annually on matters relating to orders issued for production of tangible things for foreign intelligence and international terrorism investigations (a) In general Subsection (b)(5) of section 603 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1873 (1) in subparagraph (A), by striking ; and (2) in subparagraph (B)— (A) by inserting , including information received electronically and through hard-copy and portable media such orders (B) by striking the semicolon and inserting ; and (3) by adding at the end the following: (C) the number of individuals for whom unique identifiers, unique personal identifiable information, or other identifying information has been collected pursuant to such orders, including information received electronically and through hard-copy and portable media; (D) the number of search terms that included information concerning a United States person that were used to query any database containing records obtained through the use of such orders; (E) the number of queries described in subparagraph (D) that returned information obtained from orders issued pursuant to applications made under section 501(b)(2); (F) the number of times the Attorney General required the emergency production of tangible things pursuant to section 501(i)(1) and the application under subparagraph (D) of such section was denied; and (G) the number of warrants under title I of this Act and the number of warrants under title 18, United States Code, that relied on information obtained through the use of such orders; . (b) Additional information Subsection (b)(2) of such section is amended— (1) by redesignating subparagraph (D) as subparagraph (E); and (2) by inserting after subparagraph (C) the following: (D) the number of queries described in subparagraph (C) that returned information obtained from orders issued under such section; and . (c) Repeal of nonapplicability to Federal Bureau of Investigation of certain reporting requirements Subsection (d)(2) of such section is amended by striking (A) Federal Bureau Paragraph (3)(B) of Paragraph (3)(B) 110. Limitations on use of information obtained under authority to access business records for foreign intelligence and international terrorism investigations Section 501(h) of the Foreign Intelligence Surveillance Act of 1978 ( 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) Limitation on use in criminal, civil, and administrative proceedings and investigations No information about a person acquired as described in paragraph (1) who is either a United States person or is located in the United States may be introduced as evidence against the person in any criminal, civil, or administrative proceeding or used as part of any criminal, civil, or administrative investigation, except— (A) with the prior approval of the Attorney General; and (B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of— (i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code); (ii) espionage (as used in chapter 37 (iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code); (iv) a cybersecurity threat from a foreign country; (v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 ( 42 U.S.C. 5195c(e) (vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States. . 111. Reforms relating to use of information (a) Compliance with minimization procedures; privileged communications; lawful purposes Subsection (a) of section 106 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1806 or an order issued under section 501 pursuant to this title (b) Statement for disclosure Subsection (b) of such section is amended by inserting or an order issued under section 501 pursuant to this title (c) Notification by United States Subsection (c) of such section is amended by inserting or an order issued under section 501 authority of this title (d) Notification by States or political subdivisions Subsection (d) of such section is amended— (1) by inserting or an order for production issued under section 501 authority of this title (2) by inserting or production regarding surveillance of (e) Motion To suppress Subsection (e) of such section is amended— (1) by inserting or an order for production issued under section 501 from an electronic surveillance (2) by inserting or order such electronic surveillance (f) In camera and ex parte review by district court Subsection (f) of such section is amended— (1) in the first sentence— (A) by inserting or an order for production issued under section 501 electronic surveillance (B) by inserting or the production to the surveillance (C) by inserting or production regarding surveillance of (2) in the second sentence, by inserting or production surveillance (g) Suppression of evidence; denial of motion Subsection (g) of such section is amended— (1) by inserting or production the surveillance (2) by inserting or an order for production issued under section 501 electronic surveillance (h) Finality of orders Subsection (h) of such section is amended— (1) by inserting or an order for production issued under section 501 electronic surveillance (2) by inserting or production a surveillance (i) Destruction of unintentionally acquired information Subsection (i) of such section is amended— (1) by inserting production or unintentional (2) by inserting or records contents (j) Notification of emergency employment of electronic surveillance; contents; postponement, suspension, or elimination Subsection (j) of such section is amended— (1) in the matter before paragraph (1)— (A) by inserting or emergency production under section 501(i) of section 105 (B) by inserting or the emergency production to electronic surveillance (2) in paragraph (2), by inserting or production surveillance (k) Clarification of aggrieved person Such section is amended by adding at the end the following: (l) For purposes of this section, the term aggrieved person . 112. Inspector General of Department of Justice report on use of activities protected by First Amendment in applications for production of business records for foreign intelligence and international terrorism investigations (a) Report required Not later than December 31, 2021, the Inspector General of the Department of Justice 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 report on the use of activities and protected classes described in subsection (b) in— (1) applications for orders under section 501 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861 (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, religious affiliation, and such other protected classes as the Inspector General considers appropriate. 113. Annual report on waiver of prohibition on use of information obtained without an order for production of business records for foreign intelligence and international terrorism investigations Section 501(i) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861(i) (7) Annual report on waivers of prohibition against use of information obtained without order Not less frequently than once each year, the Attorney General 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 an annual report on all cases in which the Attorney General approved the use of information that would otherwise be prohibited under paragraph (5). . B Oversight on use of authority for roving surveillance 121. Inspector General of Department of Justice report on compliance with requirements relating to use of authority for electronic surveillance (a) Report required Not later than December 31, 2021, the Inspector General of the Department of Justice 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 report on compliance with section 105(c)(3) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1805(c)(3) (b) Contents The report submitted under subsection (a) shall cover the 3-year period ending on the date of the enactment of this Act and include the following: (1) An assessment of the processes, if any, employed by the Director of the Federal Bureau of Investigation to ascertain whether each new facility or place at which electronic surveillance was directed was used by the target of the surveillance. (2) An assessment of whether each new facility or place at which electronic surveillance was directed was used by— (A) the target of the surveillance; and (B) individuals other than the target of the surveillance, including the number of such individuals. (3) The effectiveness of minimization procedures to limit collection of facilities or places that are determined were not used by the target of the surveillance. (4) An assessment of the process whereby orders are approved absent knowledge of the identity of the target. (5) The number of orders in which the identity of the target is not known. 122. Annual report on waiver of prohibition on use of information obtained without an order for electronic surveillance Section 105(e) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1805(e) (7) Not less frequently than once each year, the Attorney General 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 an annual report on all cases in which the Attorney General approved the use of information that would otherwise be prohibited under paragraph (5). . C Extension of authority To access certain business records for foreign intelligence and international terrorism investigations and for roving surveillance 131. Four-year extension of authority to access certain business records for foreign intelligence and international terrorism investigations and for roving surveillance Section 102 of the USA PATRIOT Improvement and Reauthorization Act of 2005 ( Public Law 109–177 50 U.S.C. 1805 March 15, 2020 December 15, 2023 II Additional reforms of authorities under Foreign Intelligence Surveillance Act of 1978 201. Limitation on production of cell site location and global positioning system information under pen register and trap and trace authorities Section 402(d) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1842(d) (4) No cell site location or global positioning system information may be produced pursuant to an order under this subsection. . 202. Extension of authority for individual terrorists to be treated as agents of foreign powers under Foreign Intelligence Surveillance Act of 1978 (a) Extension Section 6001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 50 U.S.C. 1801 March 15, 2020 December 15, 2023 (b) Reporting (1) Initial report Not later than 180 days after the date of the enactment of this Act, the Director of National Intelligence shall submit to Congress a report that identifies, for the preceding 12-month period, the number times a person who engages in international terrorism, or activities in preparation therefore, not for or on behalf of a foreign power, was treated as an agent of a foreign power under the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (2) Annual reporting (A) In general Section 603(b) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1873(b) (i) in paragraph (6)(C), by striking ; and (ii) in paragraph (7), by striking the period and inserting ; and (iii) by adding at the end the following: (8) the number times a person who engages in international terrorism, or activities in preparation therefore, not for or on behalf of a foreign power, was treated as an agent of a foreign power under this Act. . (B) Effective date The amendment made by subparagraph (A) shall take effect on the date that is 180 days after the date of the enactment of this Act. 203. Clarification regarding treatment of information acquired under Foreign Intelligence Surveillance Act of 1978 (a) Definition of derived (1) In general Section 101 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (q) For the purposes of notification provisions of this Act, information or evidence is derived . (2) Policies and guidance (A) In general Not later than 90 days after the date of the enactment of this Act, the Attorney General and the Director of National Intelligence shall publish the following: (i) Policies concerning the application of subsection (q) of section 101 of such Act, as added by paragraph (1). (ii) Guidance for all members of the intelligence community (as defined in section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 (B) Modifications Whenever the Attorney General and the Director modify a policy or guidance published under subparagraph (A), the Attorney General and the Director shall publish such modifications. (b) Use of information acquired under title VII Section 706 of such Act ( 50 U.S.C. 1881e (1) in subsection (a), by striking , except for the purposes of subsection (j) of such section (2) by amending subsection (b) to read as follows: (b) Information acquired under sections 703–705 Information acquired from an acquisition conducted under section 703, 704, or 705 shall be deemed to be information acquired from an electronic surveillance pursuant to title I for the purposes of section 106. . III Reforms regarding Foreign Intelligence Surveillance Act Court and Privacy and Civil Liberties Oversight Board 301. Improved role in oversight of electronic surveillance by amici curiae appointed by courts under Foreign Intelligence Surveillance Act of 1978 (a) Role of amici curiae generally (1) In general Section 103(i)(1) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(i)(1) Any amicus curiae designated pursuant to this paragraph may raise any issue with the Court at any time. (2) Referral of cases for review Section 103(i) of such Act is amended— (A) by redesignating paragraphs (5) through (11) as paragraphs (6) through (12), respectively; and (B) by inserting after paragraph (4) the following: (5) Referral for review (A) Referral to Foreign Intelligence Surveillance Court en banc If the court established under subsection (a) appoints an amicus curiae under paragraph (2)(A) to assist the Court in the consideration of any matter presented to the Court under this Act and the Court makes a decision with respect to such matter, the Court, in response to an application by the amicus curiae or any other individual designated under paragraph (1), may refer the decision to the Court en banc for review as the Court considers appropriate. (B) Referral to Foreign Intelligence Surveillance Court of Review If the court established under subsection (a) appoints an amicus curiae under paragraph (2)(A) to assist the Court in the consideration of any matter presented to the Court under this Act and the Court makes a decision with respect to such matter, the Court, in response to an application by the amicus curiae or any other individual designated under paragraph (1) may refer the decision to the court established under subsection (b) for review as the Court considers appropriate. (C) Referral to Supreme Court If the Court of Review appoints an amicus curiae under paragraph (2) to assist the Court of Review in the review of any matter presented to the Court of Review under this Act or a question of law that may affect resolution of a matter in controversy and the Court of Review makes a decision with respect to such matter or question of law, the Court of Review, in response to an application by the amicus curiae or any other individual designated under paragraph (1) may refer the decision to the Supreme Court for review as the Court of Review considers appropriate. (D) Annual report Not later than 60 days after the end of each calendar year, the Court and the Court of Review shall each publish, on their respective Internet websites, a report listing— (i) the number of applications for referral received by the Court or the Court of Review, as applicable, during the most recently concluded calendar year; and (ii) the number of such applications for referral that were granted by the Court or the Court of Review, as applicable, during such calendar year. . (3) Assistance Section 103(i)(6) of such Act, as redesignated, is further amended to read as follows: (6) Assistance Any individual designated pursuant to paragraph (1) may raise a legal or technical issue or any other issue with the Court or the Court of Review at any time. If an amicus curiae is appointed under paragraph (2)(A)— (A) the court shall notify all other amicus curiae designated under paragraph (1) of such appointment; (B) the appointed amicus curiae may request, either directly or through the court, the assistance of the other amici curiae designated under paragraph (1); and (C) all amici curiae designated under paragraph (1) may provide input to the court whether or not such input was formally requested by the court or the appointed amicus curiae. . (4) Access to information Section 103(i)(7) of such Act, as redesignated, is further amended— (A) in subparagraph (A)— (i) in clause (i)— (I) by striking that the court (I) the court ; and (II) by striking and (II) are cited by the Government in an application or case with respect to which an amicus curiae is assisting a court under this subsection; ; (ii) by redesignating clause (ii) as clause (iii); and (iii) by inserting after clause (i) the following: (ii) shall have access to an unredacted copy of each decision made by a court established under subsection (a) or (b) in which the court decides a question of law, notwithstanding whether the decision is classified; and ; (B) in subparagraph (B), by striking may shall (C) in subparagraph (C)— (i) in the subparagraph heading, by striking Classified information Access to information (ii) by striking court may have access (i) shall have access to unredacted copies of each opinion, order, transcript, pleading, or other document of the Court and the Court of Review; and (ii) may have access ; and (iii) in clause (ii), as designated by clause (ii) of this subparagraph, by striking and to the extent consistent with the national security of the United States (5) Public notice and receipt of briefs from third parties Section 103(i) of such Act, as amended by this subsection, is further amended by adding at the end the following: (13) Public notice and receipt of briefs from third parties Whenever a court established under subsection (a) or (b) considers a novel a question of law that can be considered without disclosing classified information, sources, or methods, the court shall, to the greatest extent practicable, consider such question in an open manner— (A) by publishing on its Internet website each question of law that the court is considering; and (B) by accepting briefs from third parties relating to the question under consideration by the court. . (b) Participation of amici curiae in oversight of authorizations for targeting of certain persons outside the United States other than United States persons (1) In general Section 702(j)(2) of such Act ( 50 U.S.C. 1881a(j)(2) (A) in subparagraph (B), by redesignating clauses (i) and (ii) as subclauses (I) and (II), respectively, and adjusting the indentation of the margin of such subclauses, as so redesignated, two ems to the right; (B) by redesignating subparagraphs (A) through (C) as clauses (i) through (iii), respectively, and adjusting the indentation of the margin of such clauses, as so redesignated, two ems to the right; (C) by inserting before clause (i), as redesignated by subparagraph (B), the following: (A) In general ; and (D) by adding at the end the following: (B) Participation by amici curiae In reviewing a certification under subparagraph (A)(i), the Court shall randomly select an amicus curiae designated under section 103(i) to assist with such review. . (2) Schedule Section 702(j)(5)(A) of such Act is amended by striking at least 30 days prior to the expiration of such authorization such number of days before the expiration of such authorization as the Court considers necessary to comply with the requirements of paragraph (2)(B) or 30 days, whichever is greater (c) Public notice of questions of law certified for review Section 103(j) of such Act ( 50 U.S.C. 1803(j) (1) by striking Following (1) In general Following ; and (2) by adding at the end the following: (2) Public Notice (A) In general Except as provided in subparagraph (B), whenever a court established under subsection (a) certifies a question of law for review under paragraph (1) of this subsection, the court shall publish on its Internet website— (i) a notice of the question of law to be reviewed; and (ii) briefs submitted by the parties, which may be redacted at the discretion of the court to protect sources, methods, and other classified information. (B) Protection of classified information, sources, and methods Subparagraph (A) shall apply to the greatest extent practicable, consistent with otherwise applicable law on the protection of classified information, sources, and methods. . 302. Reforms to the Foreign Intelligence Surveillance Court (a) FISA Court judges (1) Number and designation of judges Section 103(a)(1) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(a)(1) (1) (A) There is a court which shall have jurisdiction to hear applications for and to grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this Act. (B) (i) The court established under subparagraph (A) shall consist of 13 judges, one of whom shall be designated from each judicial circuit (including the United States Court of Appeals for the District of Columbia and the United States Court of Appeals for the Federal Circuit). (ii) The Chief Justice of the United States shall— (I) designate each judge of the court established under subparagraph (A) from the nominations made under subparagraph (C); and (II) make the name of each judge of such court available to the public. (C) (i) When a vacancy occurs in the position of a judge of the court established under subparagraph (A) from a judicial circuit, the chief judge of the circuit shall propose a district judge for a judicial district within the judicial circuit to be designated for that position. (ii) If the Chief Justice does not designate a district judge proposed under clause (i), the chief judge shall propose 2 other district judges for a judicial district within the judicial circuit to be designated for that position and the Chief Justice shall designate 1 such district judge to that position. (D) No judge of the court established under subparagraph (A) (except when sitting en banc under paragraph (2)) shall hear the same application for electronic surveillance under this Act which has been denied previously by another judge of such court. (E) If any judge of the court established under subparagraph (A) denies an application for an order authorizing electronic surveillance under this Act, such judge shall provide immediately for the record a written statement of each reason for the judge's decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established in subsection (b). . (2) Tenure Section 103(d) of such Act is amended by striking redesignation, redesignation. (3) Implementation (A) Incumbents A district judge designated to serve on the court established under subsection (a) of such section before the date of enactment of this Act may continue to serve in that position until the end of the term of the district judge under subsection (d) of such section, as in effect on the day before the date of the enactment of this Act. (B) Initial appointment and term Notwithstanding any provision of such section, as amended by paragraphs (1) and (2), and not later than 180 days after the date of enactment of this Act, the Chief Justice of the United States shall— (i) designate a district court judge who is serving in a judicial district within the District of Columbia circuit and proposed by the chief judge of such circuit to be a judge of the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803(a) (ii) designate a district court judge who is serving in a judicial district within the Federal circuit and proposed by the chief judge of such circuit to be a judge of such court for an initial term of 4 years. (b) Court of Review Section 103(b) of such Act is amended— (1) by striking The Chief Justice (1) Subject to paragraph (2), the Chief Justice (2) by adding at the end the following: (2) The Chief Justice may designate a district court judge or circuit court judge to a position on the court established under paragraph (1) only if at least 5 associate justices approve the designation of such individual. . 303. Study and report on diversity and representation on the FISA Court and the FISA Court of Review (a) Study The Committee on Intercircuit Assignments of the Judicial Conference of the United States shall conduct a study on how to ensure judges are appointed to the court established under subsection (a) of section 103 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803 (b) Report Not later than 1 year after the date of the enactment of this Act, the Committee on Intercircuit Assignments shall submit to Congress a report on the study carried out under subsection (a). 304. Reforms of the Privacy and Civil Liberties Oversight Board (a) Inclusion of foreign intelligence activities in oversight authority of the Privacy and Civil Liberties Oversight Board Section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 42 U.S.C. 2000ee (1) in subsection (c), by inserting and to conduct foreign intelligence activities terrorism (2) in subsection (d), and to conduct foreign intelligence activities terrorism (b) Submission of whistleblower complaints to the Privacy and Civil Liberties Oversight Board (1) In general Such section, as amended by subsection (a), is further amended— (A) in subsection (d), by adding at the end the following: (5) Whistleblower complaints (A) Submission to Board An employee of, or contractor or detailee to, an element of the intelligence community may submit to the Board a complaint or information that such employee, contractor, or detailee believes relates to a privacy or civil liberties concern. The confidentiality provisions under section 2409(b)(3) of title 10, United States Code, shall apply to a submission under this subparagraph. Any disclosure under this subparagraph shall be protected against discrimination under the procedures, burdens of proof, and remedies set forth in section 2409 of such title. (B) Authority of Board The Board may take such action as the Board considers appropriate with respect to investigating a complaint or information submitted under subparagraph (A) or transmitting such complaint or information to any other Executive agency or the congressional intelligence committees. (C) Relationship to existing laws The authority under subparagraph (A) of an employee, contractor, or detailee to submit to the Board a complaint or information shall be in addition to any other authority under another provision of law to submit a complaint or information. Any action taken under any other provision of law by the recipient of a complaint or information shall not preclude the Board from taking action relating to the same complaint or information. (D) Relationship to actions taken under other laws Nothing in this paragraph shall prevent— (i) any individual from submitting a complaint or information to any authorized recipient of the complaint or information; or (ii) the recipient of a complaint or information from taking independent action on the complaint or information. ; and (B) by adding at the end the following: (n) Definitions In this section, the terms congressional intelligence committees intelligence community 50 U.S.C. 3003 . (2) Prohibited personnel practices Section 2302(b)(8)(B) of title 5, United States Code, is amended, in the matter preceding clause (i), by striking or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures the Inspector General of an agency, a supervisor in the employee’s direct chain of command (up to and including the head of the employing agency), the Privacy and Civil Liberties Oversight Board, or an employee designated by any of the aforementioned individuals for the purpose of receiving such disclosures (c) Privacy and Civil Liberties Oversight Board subpoena power Subsection (g) of section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 42 U.S.C. 2000ee (1) in paragraph (1)(D), by striking submit a written request to the Attorney General of the United States that the Attorney General (2) by striking paragraph (2); and (3) by redesignating paragraphs (3) through (5) as paragraphs (2) through (4), respectively. (d) Tenure and compensation of Privacy and Civil Liberties Oversight Board members and staff (1) In general Such section, as amended by subsections (a) and (b), is further amended— (A) in subsection (h)— (i) in paragraph (1), by inserting full-time 4 additional (ii) in paragraph (4)(B), by striking , except that (B) in subsection (i)(1)— (i) in subparagraph (A), by striking level III of the Executive Schedule under section 5314 level II of the Executive Schedule under section 5313 (ii) in subparagraph (B), by striking level IV of the Executive Schedule level III of the Executive Schedule under section 5314 of title 5, United States Code. (C) in subsection (j)(1), by striking level V of the Executive Schedule under section 5316 level IV of the Executive Schedule under section 5315 (2) Effective date; applicability (A) In general The amendments made by paragraph (1)— (i) shall take effect on the date of the enactment of this Act; and (ii) except as provided in paragraph (2), shall apply to any appointment to a position as a member of the Privacy and Civil Liberties Oversight Board made on or after the date of the enactment of this Act. (B) Exceptions (i) Compensation changes The amendments made by subparagraphs (B)(i) and (C) of paragraph (1) shall take effect on the first day of the first pay period beginning after the date of the enactment of this Act. (ii) Election to serve full time by incumbents (I) In general An individual serving as a member of the Privacy and Civil Liberties Oversight Board on the date of the enactment of this Act, including a member continuing to serve as a member under section 1061(h)(4)(B) of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 42 U.S.C. 2000ee(h)(4)(B) current member (aa) serve as a member of the Privacy and Civil Liberties Oversight Board on a full-time basis and in accordance with section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 42 U.S.C. 2000ee (bb) serve as a member of the Privacy and Civil Liberties Oversight Board on a part-time basis in accordance with such section 1061, as in effect on the day before the date of the enactment of this Act, including the limitation on service after the expiration of the term of the member under subsection (h)(4)(B) of such section, as in effect on the day before the date of the enactment of this Act. (II) Election to serve full time A current member making an election under subclause (I)(aa) shall begin serving as a member of the Privacy and Civil Liberties Oversight Board on a full-time basis on the first day of the first pay period beginning not less than 60 days after the date on which the current member makes such election. (e) Provision of information about government activities under the Foreign Intelligence Surveillance Act of 1978 to the Privacy and Civil Liberties Oversight Board The Attorney General shall fully inform the Privacy and Civil Liberties Oversight Board about any activities carried out by the Government under the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (1) copies of each detailed report submitted to a committee of Congress under such Act; and (2) copies of each decision, order, and opinion of the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review required to be included in the report under section 601(a) of such Act ( 50 U.S.C. 1871(a) 305. Clarification of applicability of requirement to declassify significant decisions of Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review (a) Clarification of applicability Section 602 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1872 Public Law 114–23 (b) Period for publication Such section is amended by adding at the end the following: (d) Period for publication The Director of National Intelligence shall ensure that, for each decision, order, and opinion described in subsection (a), not later than 180 days after the date of the decision, order, or opinion— (1) the declassification review required by such subsection is completed; and (2) (A) the decision, order, or opinion is made publicly available; or (B) a statement is made publicly available pursuant to subsection (c)(2) with respect to the decision, order, or opinion. . IV Sunset of National Security Letter authorities 401. Sunset of National Security Letter authority (a) In general Effective on December 15, 2023— (1) section 1114 of the Right to Financial Privacy Act of 1978 ( 12 U.S.C. 3414 (2) section 626 of the Fair Credit Reporting Act ( 15 U.S.C. 1681u (3) section 627 of the Fair Credit Reporting Act ( 15 U.S.C. 1681v (4) section 2709 of title 18, United States Code is repealed; and (5) section 3511 of title 18, United States Code is amended— (A) by striking section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947 section 802(a) of the National Security Act of 1947 ( 50 U.S.C. 3162(a) (B) in subsection (b)— (i) in paragraph (1)(A), by striking section 2709 of this title, section 626 or 627 of the Fair Credit Reporting Act ( 15 U.S.C. 1681u 12 U.S.C. 3414 (ii) in paragraph (2), by striking the Attorney General the head or deputy head of the department, agency, or instrumentality, the head or deputy head of the department, agency, or instrumentality making the request (b) Conforming amendments Effective on December 15, 2023— (1) the Right to Financial Privacy Act of 1978 ( 12 U.S.C. 3401 (A) in section 1101(1) ( 12 U.S.C. 3401(1) , except as provided in section 1114, (B) in section 1102 ( 12 U.S.C. 3402 , 1113, or 1114 or 1113 (C) in section 1109 ( 12 U.S.C. 3409 (i) by striking subsection (c); and (ii) by redesignating subsection (d) as subsection (c); (2) section 1510(e) of title 18, United States Code, is amended by striking confidentiality requirements National Security Act of 1947 ( 50 U.S.C. 436(b)(1) confidentiality requirements under section 802(b)(1) of the National Security Act of 1947 ( 50 U.S.C. 3162(b)(1) (3) the table of sections for chapter 121 (4) the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (A) in section 603 ( 50 U.S.C. 1873 (i) in subsection (b)— (I) in paragraph (5), by adding and (II) in paragraph (6), by striking ; and (III) by striking paragraph (7); and (ii) in subsection (e)— (I) by striking paragraph (3); and (II) by redesignating paragraphs (4) and (5) as paragraphs (3) and (4), respectively; (B) in section 801(8)(B)(2) ( 50 U.S.C. 1885(8)(B)(2) or 2709(b) (C) in section 802(a)(2) ( 50 U.S.C. 1885a(a)(2) or 2709(b) (5) section 507 of the National Security Act of 1947 ( 50 U.S.C. 3106 (A) by striking subsection (b) and inserting the following: (b) Semiannual reports The dates for the submittal to the congressional intelligence committees of the semiannual reports on decisions not to prosecute certain violations of law under the Classified Information Procedures Act (18 U.S.C. App.) as required by section 13 of that Act shall be the dates each year provided in subsection (c)(2). ; (B) in subsection (c)(2), by striking each semiannual the semiannual (C) in subsection (d)(1)(B), by striking a semiannual the semiannual V Other matters 501. Limitation on collection without express statutory authority (a) Prohibition on interception and disclosure of wire, oral, or electronic communications Section 2511(2)(f) of title 18, United States Code, is amended by inserting— (1) by inserting (i) acquisition by the United States Government of (2) by inserting if the acquisition (I) is pursuant to express statutory authority or (II) does not include information of United States persons or persons inside the United States international or foreign communications (3) by inserting (ii) foreign intelligence activities conducted in accordance with (b) Voluntary disclosure of customer communications or records Section 2702(a) of title 18, United States Code, is amended by striking to the public (c) Exclusive means related to communications records The Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (d) Exclusive means related to cell site location, global positioning system information, web browsing history, and internet search history Title I and sections 303, 304, 703, 704, and 705 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (e) Exclusive means related to Fourth Amendment-Protected information Title I and sections 303, 304, 703, 704, and 705 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (f) United States person defined In this section, the term United States person 50 U.S.C. 1801(i)

Summary: Safeguarding Americans' Private Records Act of 2020 This bill imposes limitations on investigative powers provided under the Foreign Intelligence Surveillance Act of 1978 (FISA), reauthorizes certain FISA programs, and makes related changes. Provisions include reauthorizing to December 15, 2023, FISA authority to obtain business records, but also repealing the power to use such authority to obtain records on an ongoing basis; excluding certain data, such as cell phone location, from FISA authority to access business records; establishing that nonpublic information collected under FISA authority may not be retained for more than three years unless the information includes foreign intelligence information; disallowing the use of FISA-collected business records for criminal, civil, or administrative proceedings except in certain instances, such as cases involving a specific cybersecurity threat from a foreign country; requiring a government entity to notify a targeted person that the entity intends to use in court business records collected under FISA; excluding cell site location and global positioning system information from FISA authority for using a pen register or trap and trace device to collect evidence; reauthorizing to December 15, 2023, the power to treat individual terrorists as foreign agents; expanding the powers of FISA court amicus curiae (outside parties appointed to assist in a case), such as by authorizing the amicus to refer a FISA court decision to the FISA Court of Review; and repealing the government's authority to use National Security Letters to obtain financial or communications records without a court order.