II 113th CONGRESS 1st Session S. 1701 IN THE SENATE OF THE UNITED STATES November 14, 2013 Ms. Baldwin (for herself, Mr. Wyden , and Mr. Udall of Colorado ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend the Foreign Intelligence Surveillance Act of 1978 to strengthen Fourth and Fifth Amendment protections and freedoms of citizens of the United States and ensure greater transparency and oversight of the ability of the Federal Government to collect information and conduct surveillance on the private lives of citizens of the United States.

1. Short title This Act may be cited as the Freedoms and Privacy Act of 2013 . 2. Oversight and disclosure procedures of FISA intelligence in Federal proceedings (a) Notification and disclosure of information (1) Electronic surveillance Section 106 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1806 ) is amended— (A) in subsection (c), by striking of that aggrieved person ; (B) in subsection (f)— (i) by striking (f) Whenever a court or other authority and inserting the following: (f) (1) (A) In a Federal criminal proceeding, whenever the United States district court is notified pursuant to subsection (c), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by the defendant or another aggrieved person to discover or obtain applications or orders or other materials relating to electronic surveillance authorized by this title or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance authorized by this title, the court shall, notwithstanding any other law, ensure all applicable communications and information are handled in full compliance with the Classified Information Procedures Act (18 U.S.C. App.). (B) In subparagraph (A), the term all applicable communications and information includes any information that has been collected under this title and used in the course of an investigation that is relevant to the Federal criminal proceeding concerned, including information not intended to be entered into evidence in the proceeding. (C) Under subparagraph (A), acting in accordance with the hearing procedures described in the Classified Information Procedures Act, the court shall order the Government to provide the defendant with the following: (i) Information that was used to secure from the court established under section 103(a) an order for surveillance of the defendant or another applicable aggrieved person. (ii) A copy of each order from the court established by section 103(a), including the application of the Government for such order, authorizing surveillance of the defendant or another applicable aggrieved person. (iii) Any information obtained by the Government pursuant to each order described in clause (ii) that the Government intends to introduce into evidence or otherwise use or disclose in the Federal criminal proceeding concerned. (iv) Any information obtained by the Government pursuant to each order described in clause (ii) that is material and helpful to the defense. (2) In a proceeding other than a Federal criminal proceeding, whenever a court or other authority ; and (ii) in paragraph (2), as designated by clause (i), by striking if the Attorney General files and all that follows and inserting apply the procedures set forth in section 6 of the Classified Information Procedures Act. In applying such section for that purpose, any reference in such section to the defendant shall be deemed to be a reference to the aggrieved person. ; and (C) in subsection (g), in the first sentence, by striking electronic surveillance of the aggrieved person and inserting electronic surveillance . (2) Physical searches Section 305 of that Act ( 50 U.S.C. 1825 ) is amended— (A) in subsection (g)— (i) by striking (g) Whenever a court or other authority and inserting the following: (g) (1) (A) In a Federal criminal proceeding, whenever the United States district court is notified pursuant to subsection (d), or whenever a motion is made pursuant to subsection (f), or whenever any motion or request is made by the defendant or another aggrieved person to discover or obtain applications or orders or other materials relating to a physical search authorized by this title or to discover, obtain, or suppress evidence or information obtained or derived from a physical search authorized by this title, the court shall, notwithstanding any other law, ensure all applicable information is handled in full compliance with the Classified Information Procedures Act (18 U.S.C. App.). (B) In subparagraph (A), the term all applicable information includes any information that has been collected under this title and used in the course of an investigation that is relevant to the Federal criminal proceeding concerned, including information not intended to be entered into evidence in the proceeding. (C) Under subparagraph (A), acting in accordance with the hearing procedures described in the Classified Information Procedures Act, the court shall order the Government to provide the defendant with the following: (i) Information that was used to secure from the Foreign Intelligence Surveillance Court an order for a physical search of the defendant or another applicable aggrieved person. (ii) A copy of each order from the Foreign Intelligence Surveillance Court, including the application of the Government for the order, authorizing the physical search of the defendant or another applicable aggrieved person. (iii) Any information obtained by the Government pursuant to each order described in clause (ii) that the Government intends to introduce into evidence or otherwise use or disclose in the Federal criminal proceeding concerned. (iv) Any information obtained by the Government pursuant to each order described in clause (ii) that is material and helpful to the defense. (2) In a proceeding other than a Federal criminal proceeding, whenever a court or other authority ; and (ii) in paragraph (2), as designated by clause (i), by striking if the Attorney General files and all that follows and inserting apply the procedures set forth in section 6 of the Classified Information Procedures Act. In applying such section for that purpose, any reference in such section to the defendant shall be deemed to be a reference to the aggrieved person. ; and (B) in subsection (h), by striking physical search of the aggrieved person and inserting physical search . (3) Pen registers and trap and trace devices Section 405(f) of that Act ( 50 U.S.C. 1845(f) ) is amended— (A) by striking paragraph (2); (B) in paragraph (1), by striking (f)(1) Whenever a court or other authority and inserting the following: (f) (1) (A) In a Federal criminal proceeding, whenever the United States district court is notified pursuant to subsection (c), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by the defendant or another aggrieved person to discover or obtain applications or orders or other materials relating to the use of a pen register or trap and trace device authorized by this title or to discover, obtain, or suppress evidence or information obtained or derived from the use of a pen register or trap and trace device authorized by this title, the court shall, notwithstanding any other law, ensure all applicable information is handled in full compliance with the Classified Information Procedures Act (18 U.S.C. App.). (B) In subparagraph (A), the term all applicable information includes any information that has been collected under this title and used in the course of an investigation that is relevant to the Federal criminal proceeding concerned, including information not intended to be entered into evidence in the proceeding. (C) Under subparagraph (A), acting in accordance with the hearing procedures described in the Classified Information Procedures Act, the court shall order the Government to provide the defendant with the following: (i) Information that was used to secure from a judge referred to in section 402(b) an order for the use of a pen register or trap and trace device with respect to the defendant or another applicable aggrieved person. (ii) A copy of each order from a judge referred to in section 402(b), including the application of the Government for such order, authorizing the use of a pen register or trap and trace device with respect to the defendant or another applicable aggrieved person. (iii) Any information obtained by the Government pursuant to each order described in clause (ii) that the Government intends to introduce into evidence or otherwise use or disclose in the Federal criminal proceeding concerned. (iv) Any information obtained by the Government pursuant to each order described in clause (ii) that is material and helpful to the defense. (2) In a proceeding other than a Federal criminal proceeding, whenever a court or other authority ; and (C) in paragraph (2), as amended by this paragraph, by striking and if the Attorney General files and all that follows and inserting , apply the procedures set forth in section 6 of the Classified Information Procedures Act. In applying such section for that purpose, any reference in such section to the defendant shall be deemed to be a reference to the aggrieved person. . (4) Business records Section 501 of that Act ( 50 U.S.C. 1861 ) is amended by adding at the end the following: (i) Notification and disclosure of information (1) (A) In a Federal criminal proceeding, whenever any motion or request is made by the defendant or another aggrieved person to discover or obtain applications or orders or other materials relating to the production of tangible things authorized by this section or to discover, obtain, or suppress evidence or information obtained or derived from the production of tangible things authorized by this section, the court shall, notwithstanding any other law, ensure all applicable information is handled in full compliance with the Classified Information Procedures Act (18 U.S.C. App.). (B) In subparagraph (A), the term all applicable information includes any information that has been collected under this section and used in the course of an investigation that is relevant to the Federal criminal proceeding concerned, including information not intended to be entered into evidence in the proceeding. (C) Under subparagraph (A), acting in accordance with the hearing procedures described in the Classified Information Procedures Act, the court shall order the Government to provide the defendant with the following: (i) Information that was used to secure from a judge referred to in subsection (b) an order for the production of tangible things with respect to the defendant or another applicable aggrieved person. (ii) A copy of each order from a judge referred to in subsection (b), including the application of the Government for such order, authorizing the production of tangible things with respect to the defendant or another applicable aggrieved person. (iii) Any information obtained by the Government pursuant to each order described in clause (ii) that the Government intends to introduce into evidence or otherwise use or disclose in the Federal criminal proceeding concerned. (iv) Any information obtained by the Government pursuant to each order described in clause (ii) that is material and helpful to the defense. (2) In a proceeding other than a Federal criminal proceeding, whenever any motion or request is made by the defendant or another aggrieved person to discover or obtain applications or orders or other materials relating to the production of tangible things authorized by this section or to discover, obtain, or suppress evidence or information obtained or derived from the production of tangible things authorized by this section, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other provision of law, apply the procedures set forth in section 6 of the Classified Information Procedures Act. In applying such section for that purpose, any reference in such section to the defendant shall be deemed to be a reference to the aggrieved person (3) In this subsection, the term aggrieved person means any person whose tangible things were produced through an order for the production of things authorized by this section. . (b) Use of information (1) Pen registers and trap and trace devices Subsection (b) of section 405 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1845 ) is amended to read as follows: (b) (1) No information acquired pursuant to this title may be disclosed for law enforcement purposes (other than for international terrorism or clandestine intelligence investigations) unless the Attorney General or the Attorney General's designee (who shall be a current official of the United States who was appointed by and with the advice and consent of the Senate) executes a written certification that this section is the grounds for the authorization for disclosure. The written certification shall be executed not later than 30 days after the date of the disclosure. (2) In the event information acquired pursuant to this title or information derived therefrom is used in any investigation, prosecution, or other proceeding, the existence of the written certification executed in connection with the disclosure of such information under paragraph (1) shall be made known to the supervisory official overseeing such investigation, prosecution, or proceeding. (3) No information acquired pursuant to this title may be used in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States or any State without the advance written authorization of the Attorney General, which written authorization shall— (A) include the reasons specific to the facts at issue for such authorization, the order of a court established under section 103 that permits the information to be acquired, and identifies this section as the grounds for such authorization; and (B) be made known to all the parties and adjudicators involved in a manner that complies with the Classified Information Procedures Act (18 U.S.C. App.). . (2) Business records Section 501 of that Act ( 50 U.S.C. 1861 ), as amended by subsection (a)(4), is further amended by adding at the end the following: (j) Sharing and use of information (1) Written certification required on authorized disclosure No information acquired pursuant to this section may be disclosed for law enforcement purposes (other than for international terrorism or clandestine intelligence investigations) unless the Attorney General or the Attorney General's designee (who shall be a current official of the United States who was appointed by and with the advice and consent of the Senate) executes a written certification that this section is the grounds for the authorization for disclosure. The written certification shall be executed not later than 30 days after the date of the disclosure. (2) Notice of existence of certification In the event information acquired pursuant to this section or information derived therefrom is used in any investigation, prosecution, or other proceeding, the existence of the written certification executed in connection with the disclosure of such information under paragraph (1) shall be made known to the supervisory official overseeing such investigation, prosecution, or proceeding. (3) Attorney General authorization required for use in proceedings No information acquired pursuant to this section may be used in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States or any State without the advance written authorization of the Attorney General, which written authorization shall— (A) include the reasons specific to the facts at issue for such authorization, the order of a court established under section 103 that permits the information to be acquired, and identifies this section as the grounds for such authorization; and (B) be made known to all the parties and adjudicators involved in a manner that complies with the Classified Information Procedures Act (18 U.S.C. App.). . (3) Information from targets outside the United States Section 702 of that Act ( 50 U.S.C. 1881a ) is amended— (A) by redesignating subsections (j), (k), and (l) as subsections (k), (l), and (m), respectively; and (B) by inserting after subsection (i) the following new subsection (j): (j) Sharing and use of information (1) Written certification required on authorized disclosure No information acquired pursuant to this section may be disclosed for law enforcement purposes (other than for international terrorism or clandestine intelligence investigations) unless the Attorney General or the Attorney General's designee (who shall be a current official of the United States who was appointed by and with the advice and consent of the Senate) executes a written certification that this section is the grounds for the authorization for disclosure. The written certification shall be executed not later than 30 days after the date of the disclosure. (2) Notice of existence of certification In the event information acquired pursuant to this section or information derived therefrom is used in any investigation, prosecution, or other proceeding, the existence of the written certification executed in connection with the disclosure of such information under paragraph (1) shall be made known to the supervisory official overseeing such investigation, prosecution, or proceeding. (3) Attorney General authorization required for use in proceedings No information acquired pursuant to this section may be used in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States or any State without the advance written authorization of the Attorney General, which written authorization shall— (A) include the reasons specific to the facts at issue for such authorization, the order of a court established under section 103 that permits the information to be acquired, and identifies this section as the grounds for such authorization; and (B) be made known to all the parties and adjudicators involved in a manner that complies with the Classified Information Procedures Act (18 U.S.C. App.). . (c) Reports to Congress (1) In general Title VI of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1871 et seq. ) is amended by adding at the end the following: 602. Reports to Congress on intelligence community and law enforcement collaboration (a) In general Not later than 6 months after the date of the enactment of the Freedoms and Privacy Act of 2013 and every 6 months thereafter, the Attorney General shall make available to all members of Congress a report setting forth— (1) with respect to the preceding 6-month period, a summary of all instances of sharing under, and any changes made to, any applicable memorandum of understanding within the executive branch, established in accordance with section 535(b) of title 28, United States Code, and Executive Order 12333 ( 50 U.S.C. 3001 note), or any other sets of rules governing any applicable aspects of each element of the intelligence community (as defined in section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 )) in reporting to the Attorney General and to Federal investigative agencies information concerning possible Federal crimes, based upon information which was collected by the element during the performance of the designated intelligence activities of the element under this Act; (2) with respect to the preceding 6-month period, a summary of instances described in paragraph (1), which, in any instances in which shared information played an identifiable role in bringing an investigation, criminal or other proceeding, or settlement, shall include— (A) a summary of how the information was used in such investigation, proceeding, or settlement, and an assessment of the value of such information in such investigation, proceeding, or settlement; (B) a summary of the legal authorities under which such information was collected; and (C) a summary of the outcome of the proceeding or settlement; (3) with respect to the preceding 6-month period, a summary of the investigations, criminal or other proceedings, or settlements arising from the sharing of information described in paragraph (1), which shall include— (A) total number of such investigations, proceedings, and settlements; (B) total number of such investigations, proceedings, and settlements pursued and obtained for each recipient law enforcement agency; (C) total number of such investigations pursued by each recipient law enforcement agency; (D) total number of such investigations brought to trial by each recipient law enforcement agency; (E) total number of such proceedings resulting in conviction, and in acquittal, by each recipient law enforcement agency; and (F) the total number of such investigations for which information was withheld pursuant to subsection (b); (4) with respect to the preceding 6-month period, a detailed explanation of any changes to a Memoranda of Understanding or other policies and rules governing information sharing between the intelligence community and Federal investigative agencies, as referred to in paragraph (1); and (5) with respect to the preceding 6-month period, all of the written authorizations of the Attorney General, including the reasons for such authorizations, issued under sections 405(b)(2), 501(j)(2), and 702(j)(2). (b) Withholding of information relating to ongoing investigations (1) Withholding authorized The Attorney General may withhold from a report required by subsection (a) information on an ongoing investigation that is otherwise required to be included in such report if the inclusion of such information in such report would jeopardize such investigation. (2) Inclusion in later report Information on an investigation that is withheld from inclusion in a report pursuant to paragraph (1) shall be included in the first report under subsection (a) that is made available after the earliest of the following: (A) The closure of such investigation. (B) The completion of the adjudication of the matters covered by such investigation before an appropriate authority. (C) A determination by the Attorney General that inclusion of such information in a report under subsection (a) would no longer jeopardize such investigation. (c) Assessment of value of information The assessment of value of information for purposes of subsection (a)(2)(A) shall be conducted in accordance with such metrics as the Attorney General shall establish for purposes of this section. (d) Form Each report under this section shall be made available as follows: (1) In unclassified form, in a manner consistent with the protection of national security, suitable for being made available to the public. (2) With one or more classified annexes (with one such annex classified at a level no higher than Top Secret GENSER (or superseding level of equivalent classification)). . (2) Clerical amendment The table of contents for that Act is amended by inserting after the item relating to section 601 the following: Sec. 602. Reports to Congress on intelligence community and law enforcement collaboration. . (d) Prohibition of collection of information under FISA for domestic law enforcement purposes Section 702(g)(2)(A)(v) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a(g)(2)(A)(v) ) is amended by striking a significant and inserting the primary . 3. Minimization procedures for information collected on United States persons; disclosure of procedures (a) In general (1) Pen registers and trap and trace devices Section 406 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1846 ) is amended by adding at the end the following: (c) (1) The Attorney General, in consultation with the Director of National Intelligence, shall make available to all members of Congress all standard minimization procedures, including any modifications made to the standard minimization procedures after the date of the enactment of the Freedoms and Privacy Act of 2013 , applied to the acquisition, retention, use, and dissemination of non-publicly available information concerning unconsenting United States persons acquired in accordance with this section. (2) The Attorney General, in consultation with the Director of National Intelligence, shall satisfy the disclosure requirement described in paragraph (1) by making available the guidance documents provided to personnel executing the applicable programs to all members of Congress. Such documents shall be so submitted in unclassified form, in a manner consistent with the protection of national security, and with one or more classified annexes (with one such annex classified at a level no higher than Top Secret GENSER (or superseding level of equivalent classification)). (3) A procedure issued before the date of the enactment of the Freedoms and Privacy Act of 2013 that is required to be disclosed under paragraph (1) shall be disclosed not later than 180 days after the date of the enactment of the Freedoms and Privacy Act of 2013 . . (2) Business records Section 501(g) that Act ( 50 U.S.C. 1861(g) ) is amended by adding at the end the following: (3) Disclosure (A) Requirement The Attorney General, in consultation with the Director of National Intelligence, shall make available to all members of Congress all standard minimization procedures, including any modifications made to the standard minimization procedures after the date of the enactment of the Freedoms and Privacy Act of 2013 , applied to the acquisition, retention, use, and dissemination of non-publicly available information concerning unconsenting United States persons acquired in accordance with this section. (B) Satisfaction of requirement The Attorney General, in consultation with the Director of National Intelligence, shall satisfy the disclosure requirement described in subparagraph (A) by making available the guidance documents provided to personnel executing the applicable programs to all members of Congress. Such documents shall be so submitted in unclassified form, in a manner consistent with the protection of national security, and with one or more classified annexes (with one such annex classified at a level no higher than Top Secret GENSER (or superseding level of equivalent classification)). (C) Timing A procedure issued before the date of the enactment of the Freedoms and Privacy Act of 2013 that is required to be disclosed under subparagraph (A) shall be disclosed not later than 180 days after the date of the enactment of the Freedoms and Privacy Act of 2013 . . (3) Targets outside the United States Section 702(e) of that Act ( 50 U.S.C. 1881a(e) ) is amended by adding at the end the following: (3) Disclosure (A) Requirement The Attorney General, in consultation with the Director of National Intelligence, shall make available to all members of Congress all standard minimization procedures, including any modifications made to the standard minimization procedures after the date of the enactment of the Freedoms and Privacy Act of 2013 , applied to the acquisition, retention, use, and dissemination of non-publicly available information concerning unconsenting United States persons acquired by targeting non-United States persons reasonably believed to be located outside the United States in accordance with this section. (B) Satisfaction of requirement The Attorney General, in consultation with the Director of National Intelligence, shall satisfy the disclosure requirement described in subparagraph (A) by making available the guidance documents provided to personnel executing the applicable programs to all members of Congress. Such documents shall be so submitted in unclassified form, in a manner consistent with the protection of national security, and with one or more classified annexes (with one such annex classified at a level no higher than Top Secret GENSER (or superseding level of equivalent classification)). (C) Timing A procedure issued before the date of the enactment of the Freedoms and Privacy Act of 2013 that is required to be disclosed under subparagraph (A) shall be disclosed not later than 180 days after the date of the enactment of the Freedoms and Privacy Act of 2013 . . (b) Reports to Congress (1) In general Title VI of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1871 et seq. ), as amended by section 2(c) of this Act, is further amended by adding at the end the following: 603. Reports to Congress on review of minimization procedures (a) In general Not later than 6 months after the date of the enactment of the Freedoms and Privacy Act of 2013 and every year thereafter, the Attorney General shall make available to all members of Congress a report setting forth a review and justification of all standard minimization procedures which address the access, collections, storage, use, or dissemination of information concerning United States persons. (b) Form Each report under this section shall be made available as follows: (1) In unclassified form, in a manner consistent with the protection of national security, suitable for being made available to the public. (2) With one or more classified annexes (with one such annex classified at a level no higher than Top Secret GENSER (or superseding level of equivalent classification)). . (2) Clerical amendment The table of contents for that Act, as so amended, is further amended by inserting after the item relating to section 602 the following: Sec. 603. Reports to Congress on review of minimization procedures. .