Title: USA FREEDOM Extension and Amici Curiae Reform Act of 2020
Policy area: Armed Forces and National Security

Summary:
USA FREEDOM Extension and Amici Curiae Reform Act of 2020
This bill expands the role and authority of amici curiae (outside parties appointed to assist courts in deciding certain cases) in proceedings before courts established under the Foreign Intelligence Surveillance Act of 1978 (FISA). The bill also extends certain FISA-authorized investigative powers, including the power to access certain business records for foreign intelligence and international terrorism investigations, to June 19, 2020.
The bill expands the circumstances under which a FISA court shall appoint an amicus, such as when a case involves (1) a significant First Amendment issue, or (2) a request for approval of a new program or technology. Currently, the statute directs a FISA court to appoint an amicus only when a case involves a novel or significant interpretation of the law.
Under the bill, an amicus may (1) raise any issue at any time even if the court did not request assistance on that issue, (2) access un-redacted copies of relevant FISA court documents and related information, and (3) petition the FISA Court of Review or the Supreme Court to review a decision by a FISA-authorized court.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3420 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 3420

To extend surveillance authorities and expand amicus curiae protections 
        under the Foreign Intelligence Surveillance Act of 1978.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 9, 2020

  Mr. Leahy (for himself and Mr. Lee) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To extend surveillance authorities and expand amicus curiae protections 
        under the Foreign Intelligence Surveillance Act of 1978.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``USA FREEDOM Extension and Amici 
Curiae Reform Act of 2020''.

SEC. 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 et seq.).

SEC. 3. 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)) 
        is amended by striking subparagraph (A) and inserting the 
        following:
                    ``(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)) is amended by adding at the end the 
        following:
            ``(12) Definition.--In this subsection, the term `sensitive 
        investigative matter' means--
                    ``(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)), 
as amended by subsection (a) of this section, is amended--
            (1) in paragraph (4)--
                    (A) in the paragraph heading, by inserting ``; 
                authority'' after ``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'' and 
                inserting the following: ``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''; and
                    (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)) is amended by striking clauses (i) and 
        (ii) and inserting the following:
                            ``(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)) is amended--
                    (A) in subparagraph (B), by striking ``may'' and 
                inserting ``shall''; and
                    (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)), as amended by paragraphs (1) and (2) of 
        this subsection, is amended--
                    (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.''.

SEC. 4. 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 note) is amended by striking ``March 15, 
2020'' and inserting ``June 19, 2020''.
    (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 note) is amended by striking ``March 15, 
2020'' and inserting ``June 19, 2020''.
    (c) Effective Date.--The amendments made by this section shall take 
effect on the earlier of the date of the enactment of this Act or March 
15, 2020.
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