I 
113TH CONGRESS 
1ST SESSION H. R. 3159 
To provide for the appointment of a public interest advocate in matters 
involving a significant legal interpretation or construction of the Foreign 
Intelligence Surveillance Act of 1978, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
SEPTEMBER 20, 2013 
Mr. SCHIFF (for himself and Mr. CARNEY) introduced the following bill; which 
was referred to the Committee on the Judiciary, and in addition to the 
Select Committee on Intelligence (Permanent Select), for a period to be 
subsequently determined by the Speaker, in each case for consideration 
of such provisions as fall within the jurisdiction of the committee con-
cerned 
A BILL 
To provide for the appointment of a public interest advocate 
in matters involving a significant legal interpretation or 
construction of the Foreign Intelligence Surveillance Act 
of 1978, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Ensuring Adversarial 
Process in the FISA Court Act’’. 
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SEC. 2. PUBLIC INTEREST ADVOCATES FOR PROCEEDINGS 
UNDER THE FOREIGN INTELLIGENCE SUR-
VEILLANCE ACT OF 1978. 
(a) APPOINTMENT
BY PRIVACY
AND CIVIL LIB-
ERTIES OVERSIGHT BOARD.— 
(1) IN GENERAL.—Section 1061(d) of the Intel-
ligence Reform and Terrorism Prevention Act of 
2004 (42 U.S.C. 2000ee(d)) is amended by adding 
at the end the following new paragraph: 
‘‘(5) APPOINTMENT OF PUBLIC INTEREST AD-
VOCATES.— 
‘‘(A) APPOINTMENT.—The Board shall ap-
point attorneys to serve as public interest advo-
cates in proceedings before the Foreign Intel-
ligence Surveillance Court, a judge of the peti-
tion review pool, the Foreign Intelligence Sur-
veillance Court of Review, and the Supreme 
Court under the Foreign Intelligence Surveil-
lance Act of 1978 (50 U.S.C. 1801 et seq.). 
‘‘(B) REQUIREMENTS.—In making ap-
pointments under subparagraph (A), the Board 
shall— 
‘‘(i) consult with the Attorney Gen-
eral; 
‘‘(ii) appoint attorneys with expertise 
and experience in cases involving privacy 
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and civil liberties who are not employees of 
the Federal Government; 
‘‘(iii) consider candidates with dem-
onstrated expertise in and commitment to 
constitutional and legal protections for pri-
vacy and civil liberties; 
‘‘(iv) consider the availability of can-
didates to appear before the Foreign Intel-
ligence Surveillance Court, a judge of the 
petition review pool, the Foreign Intel-
ligence Surveillance Court of Review, or 
the Supreme Court in urgent matters; 
‘‘(v) consider the ability of candidates 
to obtain and maintain an appropriate se-
curity clearance to participate fully in mat-
ters before the Foreign Intelligence Sur-
veillance Court, a judge of the petition re-
view pool, the Foreign Intelligence Surveil-
lance Court of Review, and the Supreme 
Court under the Foreign Intelligence Sur-
veillance Act of 1978 (50 U.S.C. 1801 et 
seq.); and 
‘‘(vi) provide notice to the Attorney 
General and the presiding judge of the 
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Foreign Intelligence Surveillance Court of 
all appointments under subparagraph (A). 
‘‘(C) DUTIES.—Attorneys appointed under 
subparagraph (A) shall carry out the duties of 
the public interest advocate as described in sub-
section (i) of section 103 of the Foreign Intel-
ligence Surveillance Act of 1978 (50 U.S.C. 
1803). 
‘‘(D) TECHNICAL EXPERTS.— 
‘‘(i) APPOINTMENT.—The Board shall 
appoint technical and subject-matter ex-
perts, not employed by the Federal Gov-
ernment, to be available to assist public in-
terest advocates in performing the duties 
of such advocates under this paragraph. 
‘‘(ii) QUALIFICATIONS.—In making 
appointments under clause (i), the Board 
shall consider individuals with expertise in 
technical issues likely to arise in cases re-
lating to the Foreign Intelligence Surveil-
lance Act of 1978 (50 U.S.C. 1801 et 
seq.), including computer networks, tele-
communications, encryption, and cyberse-
curity. 
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(2) INITIAL
APPOINTMENT.—Not later than 
180 days after the date of the enactment of this Act, 
the Privacy and Civil Liberties Oversight Board 
shall appoint at least one attorney to serve as a pub-
lic interest advocate under paragraph (5) of section 
1061(d) of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (42 U.S.C. 2000ee(d)), as 
added by subsection (a) of this section. 
(b) APPOINTMENT BY FOREIGN INTELLIGENCE SUR-
VEILLANCE COURT.—Section 103 of the Foreign Intel-
ligence Surveillance Court of 1978 (50 U.S.C. 1803) is 
amended by adding at the end the following new sub-
section: 
‘‘(i)(1) In any matter before a covered court involving 
a significant interpretation or construction of a provision 
of this Act, including any novel legal, factual, or techno-
logical issue or an issue relating to the Fourth Amend-
ment to the Constitution of the United States, the court 
shall appoint one or more public interest advocates ap-
pointed under paragraph (5) of section 1061(d) of the In-
telligence Reform and Terrorism Prevention Act of 2004 
(42 U.S.C. 2000ee(d)) to represent the privacy and civil 
liberties interests of the people of the United States in 
the matter before the court. 
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‘‘(2) A court that appoints a public interest advocate 
for a matter before the court under paragraph (1) shall— 
‘‘(A) provide notice to the Attorney General and 
the Privacy and Civil Liberties Oversight Board of 
the appointment; and 
‘‘(B) provide the Privacy and Civil Liberties 
Oversight Board with a summary of the issues in 
such matter that warranted such appointment. 
‘‘(3) A public interest advocate appointed under para-
graph (1)— 
‘‘(A) shall participate fully in the matter before 
the court for which such public interest advocate 
was appointed with the same rights and privileges as 
the Federal Government; 
‘‘(B) shall represent the interests of the people 
of the United States in preserving privacy and civil 
liberties in such matter, including with respect to 
the impact of such matter on the rights of the peo-
ple of the United States under the Fourth Amend-
ment to the Constitution of the United States; 
‘‘(C) shall have access to all relevant evidence 
in such matter and may petition the court to order 
the Federal Government to produce documents, ma-
terials, or other evidence necessary to perform the 
duties of the public interest advocate; 
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‘‘(D) may file timely motions and briefs, in ac-
cordance with the procedures of the court, and shall 
be given the opportunity by the court to respond to 
motions or filings made by the Federal Government 
in accordance with such procedures; and 
‘‘(E) may request a rehearing or en banc con-
sideration of a decision of the court. 
‘‘(4)(A) In matters before the court established under 
subsection (a) in which a public interest advocate has been 
appointed and the court believes the case involves a ques-
tion of law in which there is substantial ground for dif-
ference of opinion, the court may by certification at any 
time, including following the rendering of a final judg-
ment, request review by the court established under sub-
section (b). 
‘‘(B) In matters before the court established under 
subsection (b) in which a public interest advocate has been 
appointed and the court believes the case involves a ques-
tion of law in which there is substantial ground for dif-
ference of opinion, the court may by certification at any 
time, including following the rendering of a final judg-
ment, request review by the Supreme Court. 
‘‘(C) In any matter in which a court makes a certifi-
cation for review of any ruling or question of law as pro-
vided in subparagraph (A) and (B), the United States and 
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the public interest advocate shall be given opportunity to 
provide written briefs or arguments related to the decision 
by the court established under subsection (b) or the Su-
preme Court to review a ruling. 
‘‘(5) A covered court may, sua sponte and upon a 
finding that the court would benefit from additional views, 
permit and facilitate participation by amicus curiae, in-
cluding participation in oral argument if appropriate, in 
proceedings before such court. Such court may issue ap-
propriate orders to facilitate the participation of amicus 
curiae. 
‘‘(6) The Attorney General shall ensure that each 
public interest advocate appointed under paragraph (1) 
for a matter before a covered court has access to office 
space and materials necessary to fully participate in such 
matter, including, as necessary, access to appropriately se-
cured computers, communication devices, and facilities. 
‘‘(7) In this subsection, the term ‘covered court’ 
means the court established under subsection (a), the 
court established under subsection (b), a judge of the peti-
tion review pool established under subsection (e), or the 
Supreme Court.’’. 
Æ 
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