I 113th CONGRESS 2d Session H. R. 3875 IN THE HOUSE OF REPRESENTATIVES January 14, 2014 Mr. Schiff 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 concerned A BILL To amend the Foreign Intelligence Surveillance Act of 1978 to reform the telephone metadata program.

1. Short title This Act may be cited as the Telephone Metadata Reform Act . 2. Searches of bulk caller data (a) In general Title V of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861 et seq. ) is amended— (1) in section 501— (A) in subsection (a)(1), by striking other items and inserting other items, but not including call data records ; and (B) in subsection (e), by inserting or section 502 after this section ; (2) by redesignating section 502 as section 503; (3) by inserting after section 501 the following new section: 502. Access to certain call data records for foreign intelligence and international terrorism investigations (a) In general (1) Application 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 make an application for an order directing a telecommunications carrier to search the call data records of such telecommunication carrier using a call data record as the basis of such search and to produce the results of such search in a format specified by the Director or such designee to the Director or such designee not later than 12 hours after being directed to do so. Each application under this paragraph shall— (A) be made to a judge described in section 501(b)(1); (B) specify each telecommunications carrier that the applicant requests be directed to search call data records and produce the results of such search; and (C) include a statement of facts showing that there is a reasonable suspicion, based on specific and articulable facts, that the call data record to be used as the basis for the search is associated with a specific foreign terrorist organization, a specific clandestine intelligence activity, or specific foreign intelligence not concerning a United States person. (2) Order (A) Review of application Upon an application made pursuant to paragraph (1), if the judge finds that the application meets the requirements of such paragraph, the judge shall enter an ex parte order as requested, or as modified, approving the application. (B) Presumption In reviewing an application under subparagraph (A), a judge shall consider a call data record presumptively associated with a specific foreign terrorist organization, a specific clandestine intelligence activity, or specific foreign intelligence not concerning a United States person if the applicant shows in the statement of the facts that such call data record pertains to— (i) a foreign power or an agent of a foreign power; (ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or (iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation. (b) Exigent circumstances (1) Emergency directive 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 direct a telecommunications carrier to search the call data records of such telecommunication carrier using a call data record as the basis of such search and to produce the results of such search in a format specified by the Director or such designee to the Director or such designee not later than 6 hours after being directed to do so if— (A) the Director or such designee determines that the records sought are required due to exigent circumstances and that obtaining an order in accordance with subsection (a) would substantially delay an investigation; (B) the Director or such designee notifies a judge described in section 501(b)(1) not later than 24 hours after the Director or such designee exercises the authority under this subsection that the Director or such designee exercised such authority; and (C) an application for an order under subsection (a) with respect to the search and production of call data records conducted under such directive is made to such judge as soon as practicable, but not more than 5 days after the date on which the Director or such designee exercises the authority under this subsection. (2) Use of information If an application for an order requiring the search and production of the call data records acquired under an emergency directive issued under paragraph (1) is denied, or in any other case where the search and production of call data records pursuant to a directive issued under paragraph (1) is terminated and no order under this section is issued approving the search and production of such call data records— (A) such call data records shall be destroyed; (B) any call data records acquired pursuant to a subsequent search under subsection (c) based on the call data records obtained under such directive shall be destroyed; (C) no information obtained or evidence derived from the search and production of call data records under such directive or from such subsequent search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof; and (D) no information concerning any United States person acquired from such search and production of call records shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person. (3) Enforcement (A) Order to compel If a telecommunications carrier fails to comply with a directive issued pursuant to paragraph (1), the Attorney General may file a petition for an order to compel the telecommunications carrier to comply with the directive with a judge described in section 501(b)(1). (B) Review If a judge considering a petition submitted under subparagraph (A) finds that the directive meets the requirements of this section and is otherwise lawful, the judge shall issue an order requiring the telecommunications carrier to comply with such directive. (C) Contempt of court Failure to obey an order issued under this paragraph may be punished by the judge as contempt of court. (D) Process Any process under this paragraph may be served in any judicial district in which the telecommunications carrier may be found. (c) Subsequent search using results of initial search 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 require a telecommunications carrier to conduct a search of the call data records of that telecommunications carrier using the results of a search conducted pursuant to an order under subsection (a) or a directive under subsection (b) as the basis for the search under this paragraph and to produce the results of such search under this paragraph in a format specified by the Director of such designee to the Director or such designee not later than 12 hours after being directed to do so. (d) Nondisclosure (1) In general No person shall disclose to any other person that the Federal Bureau of Investigation has sought or obtained call data records pursuant to an order or directive under this section other than to— (A) those persons to whom disclosure is necessary to comply with such order or such directive; (B) an attorney to obtain legal advice or assistance with respect to the search and production of call data records in response to such order or such directive; or (C) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director. (2) Persons to whom an order is disclosed (A) Applicability of nondisclosure requirement A person to whom disclosure is made pursuant to paragraph (1) 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 such person. (B) Sharing of information on nondisclosure requirement Any person who discloses to a person described in subparagraph (A), (B), or (C) of paragraph (1) that the Federal Bureau of Investigation has sought or obtained call data records pursuant to an order under this section shall notify such person of the nondisclosure requirements of this paragraph. (e) Limitation on retention of information related to United States persons The Federal Government may not retain call data records obtained pursuant to an order under subsection (a), a directive under subsection (b), or a subsequent search under subsection (c) for a period of more than 5 years if such records contain call data records pertaining to, or reasonably believed to pertain to, a United States person— (1) unless upon application to a judge described in section 501(b)(1) showing probable cause that such records are evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes and such judge finds such probable cause exists; or (2) except to the extent any portion of such records is lawfully used as part of a finished intelligence product. (f) Compensation The Government shall compensate, at the prevailing rate, a telecommunications carrier for providing call data records under this section. (g) Technical assistance The Government may provide appropriate technical assistance to a telecommunications carrier to allow such telecommunications carrier to comply expeditiously with an order or directive under this section. (h) Report The Director of the Federal Bureau of Investigation shall annually submit to Congress and make publicly available a report relating to searches conducted pursuant to this section during the immediately preceding year. Such report shall include— (1) the total number of searches conducted during such year; (2) the number of searches of United States telephone numbers (or telephone numbers reasonably believed to belong to a United States person) conducted during such year; (3) the total number of phone numbers that resulted from searches conducted during such year; (4) the number of United States telephone numbers, or telephone numbers reasonably believed to belong to a United States person, that resulted from such searches; (5) the number of times the Director or a designee of the Director exercised the authority under subsection (b) to issue a directive due to exigent circumstances; and (6) the number of times a court rejected an application made in accordance with subsection (b)(1)(C) and required the destruction of call data records produced pursuant to subsection (b)(1). (i) Definitions In this section: (1) Covered authorized investigation The term covered authorized investigation — (A) means an authorized investigation (other than a threat assessment) conducted to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation; and (B) does not include an investigation of a United States person conducted solely upon the basis of activities protected by the first amendment to the Constitution. (2) Telecommunications carrier The term telecommunications carrier has the meaning given the term in section 102 of the Communications Assistance for Law Enforcement Act ( 47 U.S.C. 1001 ). ; and (4) by adding at the end the following new section: 504. Definitions In this title: (1) Agent of a foreign power; foreign intelligence information; foreign power; international terrorism The terms agent of a foreign power , foreign intelligence information , foreign power , and international terrorism have the meanings given such terms in section 101. (2) Call data record The term call data record means communications routing information, including an original or terminating telephone number, an International Mobile Subscriber Identity, an International Mobile Station Equipment Identity, a trunk identifier, a telephone calling card number, the time or duration of a call, or original or terminating text-message numerical information. . (b) Table of contents amendment The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 note) is amended by striking the item relating to section 502 and inserting the following new items: Sec. 502. Access to certain call data records for foreign intelligence and international terrorism investigations. Sec. 503. Congressional oversight. Sec. 504. Definitions. . (c) Effective date of limitation on acquisition of telephone metadata under existing law Subparagraph (A) of subsection (a)(1) shall take effect on the date that is 180 days after the date of the enactment of this Act. (d) Limitation on searches of telephone metadata acquired under existing law (1) In general Subject to paragraphs (2) and (3), no person may conduct a search of call data records acquired pursuant to an order under section 501 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861 ), as in effect on the day before the effective date described in subsection (c). (2) Exception (A) Application The Director of the Federal Bureau of Investigation may make an application to a judge of the court established by section 103(a) ( 50 U.S.C. 1803(a) ) of such Act to conduct a search of call data records described in paragraph (1). Such application shall include a statement of facts showing that there is a reasonable suspicion, based on specific and articulable facts, that the call data record to be used as the basis for the search is associated with a specific foreign terrorist organization, a specific clandestine intelligence activity, or specific foreign intelligence not concerning a United States person. (B) Review of application Upon an application made pursuant to subparagraph (A), if the judge finds that the application meets the requirements of such subparagraph, the judge shall enter an ex parte order as requested, or as modified, approving the application. (C) Presumption In reviewing an application under subparagraph (B), a judge shall consider a call data record presumptively associated with a specific foreign terrorist organization, a specific clandestine intelligence activity, or specific foreign intelligence not concerning a United States person if the applicant shows in the statement of the facts that such call data record pertains to— (i) a foreign power or an agent of a foreign power; (ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or (iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation. (3) Expiration of exception Paragraph (2) shall not apply after the effective date described in subsection (c). (4) Call data record defined In this subsection, the term call data record has the meaning given the term in section 504 of the Foreign Intelligence Surveillance Act of 1978, as added by subsection (a) of this section. (e) Rule of construction Nothing in this Act or the amendments made by this Act shall be construed to— (1) require a telecommunications carrier (as defined in section 502(f) of the Foreign Intelligence Surveillance Act of 1978, as added by subsection (a)) to maintain call data records (as defined in section 504 of such Act, as added by subsection (a)) for any specific period of time; or (2) authorize the collection or retention of the content of any telephone call.