Bill 113-HR-3361 — Law and Crime / Criminal & Civil Code
Subject: Crime and law enforcement

USA FREEDOM Act - Title I: FISA Business Records Reforms - (Sec. 101) Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to establish a new process to be followed when the Federal Bureau of Investigation (FBI) submits an application to a FISA court for an order requiring the production of tangible things (commonly referred to as business records, including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities.

Requires the FBI to include in such tangible thing applications a specific selection term to be used as the basis for such production.

Defines "specific selection term" as a discrete term (such as a term specifically identifying a person, entity, account, address, or device) used by the government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the government.

Provides for applications seeking the production of call detail records to be considered under revised FISA requirements for the production of tangible things.

Defines "call detail record" as session identifying information (including an originating or terminating telephone number, an International Mobile Subscriber Identity number, or an International Mobile Station Equipment Identity number), a telephone calling card number, or the time or duration of a call. Excludes from such definition: (1) the contents of any communication; (2) the name, address, or financial information of a subscriber or customer; or (3) cell site location information.

Establishes two separate frameworks for the production of such call detail records with different standards that apply based on whether the application seeks: (1) production on a daily basis of call detail records created before, on, or after the date of the application relating to an authorized investigation to protect against international terrorism; or (2) production of call detail records in any other manner under revised FISA requirements for the production of all other tangible things.

Requires the FBI, in applications seeking the production on a daily basis of call detail records created before, on, or after the date of an application relating to an authorized investigation to protect against international terrorism, to include a statement of facts showing: (1) reasonable grounds to believe that the call detail records sought to be produced based on the specific selection term are relevant to such investigation; and (2) facts giving rise to a reasonable, articulable suspicion that such specific selection term is associated with a foreign power or an agent of a foreign power.

Requires a judge approving the release, on a daily basis, of call detail records created before, on, or after the date of application relating to an authorized investigation to protect against international terrorism to:

 limit such production to a period not to exceed 180 days, but allow such orders to be extended upon application with judicial approval; permit the government to require the prompt production of such records using: (1) a specific selection term that satisfies the reasonable, articulable suspicion standard that the term is associated with a foreign power or an agent of a foreign power; and (2) call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records (thus limiting the government to what is commonly referred to as two "hops" of call records when the order concerns production on a daily basis of call detail records created before, on, or after the date of the application relating to an authorized investigation to protect against international terrorism); and direct the government to: (1) adopt minimization procedures requiring prompt destruction of such call records that the government determines are not foreign intelligence information, and (2) destroy all call detail records produced under the order as prescribed by such procedures. Requires applications and orders under FISA for production of call detail records in any other manner (other than in the manner required for a daily production of such records created before, on, or after the date of an application relating to an authorized investigation to protect against international terrorism) to be considered under the standards applicable to all other applications and orders for the production of tangible things. (Thus, requires a specific selection term but does not subject the production to the additional requirements--including the reasonable, articulable suspicion standard regarding an association with a foreign power or an agent of a foreign power, the 180-day period limitation, the two-hop limitation, and the prompt destruction requirements for records that are not foreign intelligence information--that are applicable only to the daily production of call detail records created before, on, or after the date of the application relating to an authorized investigation to protect against international terrorism.)

(Sec. 102) Authorizes the Attorney General to require the emergency production of tangible things, without first obtaining a court order, if the Attorney General: (1) reasonably determines that an emergency situation requires the production of tangible things before an order authorizing production can be obtained with due diligence, (2) reasonably determines that a factual basis exists for the issuance of such a production order, (3) informs a FISA judge of the decision to require such production at the time the emergency decision is made, and (4) makes an application to a FISA judge within seven days after the Attorney General requires such emergency production.

Terminates the authority for such emergency production of tangible things when the information sought is obtained, when the application for the order is denied, or after the expiration of seven days from the time the Attorney General begins requiring such emergency production, whichever is earliest.

Prohibits information obtained or evidence derived from such an emergency production from being received in evidence or disclosed in any 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 a political subdivision if: (1) the subsequent application for court approval is denied, or (2) the production is terminated and no order is issued approving the production. Bars information concerning any U.S. person acquired from such production from being used or disclosed in any other manner by federal officers or employees without the consent of such person, except with approval of the Attorney General if the information indicates a threat of death or serious bodily harm.

(Sec. 103) Requires FISA court orders approving the production of tangible things to include each specific selection term used as the basis for such production.

Prohibits FISA courts from authorizing the collection of tangible things without the use of a specific selection term.

(Sec. 104) Requires a FISA court, as a condition to approving an application for a tangible thing production order, to find that the minimization procedures submitted with the application meet applicable FISA standards.

(Sec. 105) Extends liability protections to: (1) persons required to provide information, facilities, or technical assistance for the production of tangible things; and (2) persons who provide technical assistance to the government for such production or to implement amendments made by this Act to FISA's requirements for such production. (Currently, liability protections are limited to persons who produce such tangible things.)

(Sec. 106) Requires the government to compensate a person for reasonable expenses incurred for: (1) producing tangible things or providing information, facilities, or assistance in accordance with an order issued for the production of daily-basis call detail records created before, on, or after the date of the application or an emergency production that requires an application for such daily-basis call records; or (2) providing such technical assistance to the government or to implement the tangible thing production amendments of this Act.

(Sec. 108) Amends the USA PATRIOT Improvement and Reauthorization Act of 2005 to require the Inspector General of the Department of Justice (DOJ) to audit the effectiveness and use of FISA authority to obtain production of tangible things from 2012 to 2014, including an examination of whether minimization procedures adopted by the Attorney General adequately protect the constitutional rights of U.S. persons. Directs the Inspector General of the Intelligence Community, for the same 2012-2014 period, to assess: (1) the importance of such information to the intelligence community; (2) the manner in which such information was collected, retained, analyzed, and disseminated; and (3) the adequacy of minimization procedures, including an assessment of any minimization procedures proposed by an element of the intelligence community that were modified or denied by the court.

Requires such Inspectors General to report to Congress regarding the results of such audit and assessment.

(Sec. 109) Requires amendments made by this Act to FISA's tangible thing requirements to take effect 180 days after enactment of this Act.

Prohibits this Act from being construed to alter or eliminate the government's authority to obtain an order under the tangible things requirements of FISA as in effect prior to the effective date of such amendments during the period ending on such effective date.

(Sec. 110) Prohibits this Act from being construed to authorize the production of the contents of any electronic communication from an electronic communication service provider under such tangible thing requirements.

Title II: FISA Pen Register and Trap and Trace Device Reform - (Sec. 201) Requires the government's FISA applications for orders approving pen registers or trap and trace devices to include a specific selection term as the basis for selecting the telephone line or other facility to which the register or device is to be attached or applied.

(Sec. 202) Directs the Attorney General to ensure that appropriate procedures are in place to safeguard nonpublicly available information concerning U.S. persons that is collected through the use of a pen register or trap and trace device installed with FISA court approval. Requires such procedures to include protections for the collection, retention, and use of information concerning U.S. persons.

Requires information collected through the use of a pen register or trap and trace device that the Attorney General authorizes on an emergency basis to be subject to the same procedural safeguards.

Title III: FISA Acquisitions Targeting Persons Outside the United States Reforms - (Sec. 301) Requires the Attorney General's minimization procedures for the targeting of persons outside the United States (other than U.S. persons) that is authorized by the Attorney General and the Director of National Intelligence (DNI) to: (1) minimize the acquisition, and prohibit the retention and dissemination, of any communication as to which the sender and all intended recipients are determined to be located in the United States at the time of acquisition, consistent with the U.S. need to obtain, produce, and disseminate foreign intelligence information; and (2) prohibit the use of any discrete communication that is not to, from, or about the target of an acquisition and is to or from an identifiable U.S. person or a person reasonably believed to be located in the United States, except to protect against an immediate threat to human life.

(Sec. 302) Requires, to the extent the FISA court orders a correction of a certification or minimization procedures provided to the court by the Attorney General and DNI for such targeting, that no information obtained or evidence derived from an acquisition pursuant to the deficient part of the certification or procedures concerning a U.S. person be received in evidence or otherwise disclosed in any 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 a political subdivision. Prohibits information concerning any U.S. person acquired pursuant to such part of such certification from being used or disclosed subsequently in any other manner by federal officers or employees without the consent of the U.S. person, except with approval of the Attorney General if the information indicates a threat of death or serious bodily harm.

Title IV: Foreign Intelligence Surveillance Court Reforms - (Sec. 401) Requires the FISA court and the FISA court of review to appoint an individual to serve as amicus curiae to assist in the consideration of any application for an order or a review that presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate.

Permits appointment of amicus curiae in any other instance as such courts deem appropriate.

Directs the presiding judges of such courts to jointly designate at least five individuals to be eligible to serve as amicus curiae. Requires such judges to notify the Attorney General of each appointment.

(Sec. 402) Requires the DNI to: (1) conduct a declassification review of each decision, order, or opinion issued by the FISA court or the FISA court of review that includes a significant construction or interpretation of any FISA provision, including a construction or interpretation of "specific selection term" as defined in this Act; and (2) make such decisions, orders, or opinions publicly available to the greatest extent practicable, subject to permissible redactions.

Authorizes the DNI to waive such review and public availability requirements if: (1) a waiver is necessary to protect the national security of the United States or properly classified intelligence sources or methods, and (2) an unclassified statement prepared by the Attorney General is made publicly available to summarize the significant construction or interpretation of the FISA provision.

Title V: National Security Letter Reform - (Sec. 501) Amends the federal criminal code, the Right to Financial Privacy Act of 1978, and the Fair Credit Reporting Act to require the use of a specific selection term as the basis for requests (commonly referred to as "national security letters") that: (1) the FBI makes to wire or electronic communication service providers for telephone toll and transactional records, as well as to consumer reporting agencies for information regarding the financial institutions at which consumers maintain accounts; and (2) other government authorities make to financial institutions for financial records and to consumer reporting agencies for consumer reports.

Title VI: FISA Transparency and Reporting Requirements - (Sec. 601) Requires the Attorney General to expand an annual report to Congress regarding tangible thing applications to include the total number of: (1) applications made for the daily production of call detail records created before, on, or after the date of an application relating to an authorized investigation to protect against international terrorism; and (2) orders approving such requests.

(Sec. 602) Requires the Attorney General to include in such reports a summary of all compliance reviews conducted by the federal government regarding the production of tangible things.

(Sec. 603) Directs the Administrative Office of the U.S. Courts to submit annually to Congress, and make available publicly on an Internet website, the number of: (1) FISA orders entered, modified, or denied under specified FISA authorities; and (2) appointments of an individual to serve as amicus curiae for FISA courts, including the name of each appointed individual. Makes the Internet availability of such information subject to a declassification review by the Attorney General and DNI.

Directs the DNI to make available publicly a report that identifies, for the preceding 12-month period, the total number of: (1) FISA court orders issued for electronic surveillance, physical searches, the targeting of persons outside the United States, pen registers and trap and trace devices, call detail records, and other tangible things; and (2) national security letters issued. Requires such reports to include the estimated number of targets affected by each order and the number requests for information contained within such national security letters.

(Sec. 604) Permits a person who is subject to FISA orders or who receives national security letters to choose one of three methods to report publicly, on a semiannual basis, the aggregate number of orders or directives with which the person was required to comply in the preceding six months. Specifies the categories of orders and letters to be itemized, the details authorized to be included with respect to content orders and the number of customer accounts affected, and the ranges within which the number of orders or letters received may be reported aggregately in bands under each permitted method (i.e., reported in bands of 1000, 500, or 250 depending on the chosen method).

Delays the time periods within which persons may make such disclosures by requiring that certain semiannual reports only include information for: (1) the period ending at least 180 days before the publication of such report; and (2) the period ending at least two years before the publication of such report when the information is with respect to a platform, product, or service for which a person did not previously receive such an order or letter.

Prohibits such structured reporting methods from being construed to prohibit the government and any person from jointly agreeing to the publication of such information in a time, form, or manner other than as described in this section.

(Sec. 605) Expands the categories of FISA court decisions, orders, or opinions that the Attorney General is required to submit to Congress within 45 days after issuance of the decision to include: (1) a denial or modification of an application under FISA; and (2) a change of the application, or a new application, of any FISA provision. (Currently, the Attorney General is only required to submit decisions regarding a significant construction or interpretation of any FISA provision.)

(Sec. 606) Revises reporting requirements regarding electronic surveillance, physical searches, and tangible things to include the House Judiciary Committee as a recipient of such reports.

Requires the Attorney General to identify in an existing semiannual report each agency on behalf of which the government has applied for orders approving the use of pen registers or trap and trace devices under FISA.

 Title VII: Sunsets - (Sec. 701) Amends the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004 to extend until December 31, 2017 (thereby aligning the expiration date of the following provisions with the expiration date of provisions under the FISA Amendments Act of 2008), specified authority concerning: (1) the production of business records and other tangible things, (2) roving electronic surveillance orders, and (3) a revised definition of "agent of a foreign power" to include any non-U.S. person who engages in international terrorism or preparatory activities (commonly referred to as the "lone wolf" provision). (Currently, such provisions are scheduled to expire on June 1, 2015.)