Safeguarding Americans' Private Records Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 5675 To amend the Foreign Intelligence Surveillance Act of 1978 to protect privacy rights, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 24, 2020 Ms. LOFGREN (for herself, Mr. DAVIDSON of Ohio, Ms. JAYAPAL, Mr. GAETZ, Mr. BLUMENAUER, and Mr. YOHO) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Intelligence (Permanent Select), Financial Services, Over- sight and Reform, and Homeland Security, for a period to be subse- quently 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 protect privacy rights, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Safeguarding Americans’ Private Records Act of 2020’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 5675 IH Sec. 1. Short title; table of contents. TITLE I—REFORM AND OVERSIGHT OF AUTHORITY TO ACCESS CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS AND FOR ROVING SURVEILLANCE Subtitle A—Reform and Oversight of Authority To Access Certain Business Records for Foreign Intelligence and International Terrorism Investigations Sec. 101. Repeal of authority to access on an ongoing basis business records for foreign intelligence and international terrorism investiga- tions. Sec. 102. Exclusion of cell site location and global positioning system informa- tion from authority to access business records for foreign intel- ligence and international terrorism investigations. Sec. 103. Exclusion of Internet website browsing and Internet search history information from authority to access business records for for- eign intelligence and international terrorism investigations. Sec. 104. Exclusion from authority to access business records for foreign intel- ligence and international terrorism investigations of informa- tion that would otherwise require a warrant. Sec. 105. Modification of requirements relating to connection to foreign power for access business records for foreign intelligence and inter- national terrorism investigations. Sec. 106. Justification for nondisclosure requirement concerning access busi- ness records for foreign intelligence and international terrorism investigations. Sec. 107. Limitations on retention of tangible things for foreign intelligence and international terrorism investigations. Sec. 108. Judicial review of compliance with minimization procedures for access to certain business records for foreign intelligence and inter- national terrorism investigations. Sec. 109. Modification of requirement for Director of National Intelligence to report annually on matters relating to orders issued for pro- duction of tangible things for foreign intelligence and inter- national terrorism investigations. Sec. 110. Limitations on use of information obtained under authority to access business records for foreign intelligence and international ter- rorism investigations. Sec. 111. Reforms relating to use of information. Sec. 112. Inspector General of Department of Justice report on use of activities protected by First Amendment in applications for production of business records for foreign intelligence and international terrorism investigations. Sec. 113. Annual report on waiver of prohibition on use of information obtained without an order for production of business records for foreign intelligence and international terrorism investigations. Subtitle B—Oversight on Use of Authority for Roving Surveillance Sec. 121. Inspector General of Department of Justice report on compliance with requirements relating to use of authority for electronic surveillance. VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 5675 IH Sec. 122. Annual report on waiver of prohibition on use of information obtained without an order for electronic surveillance. Subtitle C—Extension of Authority To Access Certain Business Records for Foreign Intelligence and International Terrorism Investigations and for Roving Surveillance Sec. 131. Four-year extension of authority to access certain business records for foreign intelligence and international terrorism investiga- tions and for roving surveillance. TITLE II—ADDITIONAL REFORMS OF AUTHORITIES UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 Sec. 201. Limitation on production of cell site location and global positioning system information under pen register and trap and trace au- thorities. Sec. 202. Extension of authority for individual terrorists to be treated as agents of foreign powers under Foreign Intelligence Surveillance Act of 1978. Sec. 203. Clarification regarding treatment of information acquired under For- eign Intelligence Surveillance Act of 1978. TITLE III—REFORMS REGARDING FOREIGN INTELLIGENCE SUR- VEILLANCE ACT COURT AND PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD Sec. 301. Improved role in oversight of electronic surveillance by amici curiae appointed by courts under Foreign Intelligence Surveillance Act of 1978. Sec. 302. Reforms to the Foreign Intelligence Surveillance Court. Sec. 303. Study and report on diversity and representation on the FISA Court and the FISA Court of Review. Sec. 304. Reforms of the Privacy and Civil Liberties Oversight Board. Sec. 305. Clarification of applicability of requirement to declassify significant decisions of Foreign Intelligence Surveillance Court and For- eign Intelligence Surveillance Court of Review. TITLE IV—SUNSET OF NATIONAL SECURITY LETTER AUTHORITIES Sec. 401. Sunset of national security letter authority. TITLE V—OTHER MATTERS Sec. 501. Limitation on collection without express statutory authority. VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6211 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 5675 IH TITLE I—REFORM AND OVER- 1 SIGHT OF AUTHORITY TO AC- 2 CESS CERTAIN BUSINESS 3 RECORDS FOR FOREIGN IN- 4 TELLIGENCE AND INTER- 5 NATIONAL TERRORISM IN- 6 VESTIGATIONS AND FOR ROV- 7 ING SURVEILLANCE 8 Subtitle A—Reform and Oversight 9 of Authority To Access Certain 10 Business Records for Foreign 11 Intelligence and International 12 Terrorism Investigations 13 SEC. 101. REPEAL OF AUTHORITY TO ACCESS ON AN ONGO- 14 ING BASIS BUSINESS RECORDS FOR FOREIGN 15 INTELLIGENCE AND INTERNATIONAL TER- 16 RORISM INVESTIGATIONS. 17 (a) IN GENERAL.—Subsection (a) of section 501 of 18 the Foreign Intelligence Surveillance Act of 1978 (50 19 U.S.C. 1861) is amended by adding at the end the fol- 20 lowing: 21 ‘‘(4) The authority under paragraph (1) shall not in- 22 clude an application for an order requiring the produc- 23 tion— 24 VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 5675 IH ‘‘(A) on an ongoing basis of any tangible 1 things; or 2 ‘‘(B) of any tangible things other than those 3 identified by the specific selection term included in 4 the application pursuant to subsection (b)(2)(A).’’. 5 (b) CONFORMING AMENDMENTS.—Such Act is 6 amended— 7 (1) in section 501 (50 U.S.C. 1861)— 8 (A) in subsection (a)(1), by striking ‘‘Sub- 9 ject to paragraph (3)’’ and inserting ‘‘Subject 10 to the provisions of this subsection’’; 11 (B) in subsection (b)(2)— 12 (i) by striking subparagraph (C); 13 (ii) in subparagraph (B), by striking 14 ‘‘in the case of’’ and all that follows 15 through ‘‘in subparagraph (C)),’’; 16 (iii) by redesignating subparagraph 17 (D) as subparagraph (C); and 18 (iv) in subparagraph (B)(iii), by strik- 19 ing the semicolon at the end and inserting 20 ‘‘; and’’; 21 (C) in subsection (c)— 22 (i) in paragraph (1), by striking ‘‘with 23 subsection (b)(2)(D)’’ and inserting ‘‘with 24 subsection (b)(2)(C)’’; and 25 VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 5675 IH (ii) in paragraph (2), by striking sub- 1 paragraph (F) and inserting the following: 2 ‘‘(F) in the case of an application for call 3 detail records, shall direct the Government— 4 ‘‘(i) to adopt minimization procedures 5 that require the prompt destruction of all 6 call detail records produced under the 7 order that the Government determines are 8 not foreign intelligence information; and 9 ‘‘(ii) to destroy all call detail records 10 produced under the order as prescribed by 11 such procedures.’’; 12 (D) by amending subsection (j) to read as 13 follows: 14 ‘‘(j) COMPENSATION.—The Government shall com- 15 pensate a person for reasonable expenses incurred for pro- 16 viding technical assistance to the Government under this 17 section.’’; and 18 (E) in subsection (k)(4)(B), by striking 19 ‘‘For purposes of an application submitted 20 under subsection (b)(2)(C)’’ and inserting ‘‘In 21 the case of an application for a call detail 22 record’’; 23 (2) in section 502(b) (50 U.S.C. 1862(b))— 24 (A) by striking paragraph (4); and 25 VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 5675 IH (B) by redesignating paragraphs (5) 1 through (8) as paragraphs (4) through (7), re- 2 spectively; 3 (3) in section 603(b)(6) (50 U.S.C. 4 1873(b)(6))— 5 (A) in the matter before subparagraph (A), 6 by striking ‘‘under section 501(b)(2)(C)’’ and 7 inserting ‘‘under section 501(b)(2)(B)’’; and 8 (B) in subparagraph (C), by striking ‘‘any 9 database of’’; and 10 (4) in section 604(a)(1)(F) (50 U.S.C. 11 1874(a)(1)(F))— 12 (A) by striking clause (iii); 13 (B) in clause (ii), by striking ‘‘; and’’ and 14 inserting a period; and 15 (C) in clause (i), by striking the semicolon 16 and inserting ‘‘; and’’. 17 (c) TECHNICAL CORRECTION.—Paragraph (3) of sec- 18 tion 501(a) of the Foreign Intelligence Surveillance Act 19 of 1978 (50 U.S.C. 1861(a)) is amended by indenting 20 such paragraph 2 ems to the left. 21 (d) EFFECTIVE DATE.—The amendments made by 22 this section shall take effect on the date of the enactment 23 of this Act and shall apply with respect to applications 24 made under section 501 of the Foreign Intelligence Sur- 25 VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 5675 IH veillance Act of 1978 (50 U.S.C. 1861) on or after such 1 date. 2 SEC. 102. EXCLUSION OF CELL SITE LOCATION AND GLOB- 3 AL POSITIONING SYSTEM INFORMATION 4 FROM AUTHORITY TO ACCESS BUSINESS 5 RECORDS FOR FOREIGN INTELLIGENCE AND 6 INTERNATIONAL TERRORISM INVESTIGA- 7 TIONS. 8 Section 501(k) of the Foreign Intelligence Surveil- 9 lance Act of 1978 (50 U.S.C. 1861(k)) is amended by add- 10 ing at the end the following: 11 ‘‘(5) The term ‘tangible thing’ does not include 12 the following: 13 ‘‘(A) Cell site location information. 14 ‘‘(B) Global positioning system informa- 15 tion.’’. 16 SEC. 103. EXCLUSION OF INTERNET WEBSITE BROWSING 17 AND INTERNET SEARCH HISTORY INFORMA- 18 TION FROM AUTHORITY TO ACCESS BUSI- 19 NESS RECORDS FOR FOREIGN INTELLIGENCE 20 AND INTERNATIONAL TERRORISM INVES- 21 TIGATIONS. 22 Paragraph (5) of section 501(k) of the Foreign Intel- 23 ligence Surveillance Act of 1978 (50 U.S.C. 1861(k)), as 24 VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 5675 IH added by section 102, is amended by adding at the end 1 the following: 2 ‘‘(C) Internet website browsing informa- 3 tion. 4 ‘‘(D) Internet search history information.’’. 5 SEC. 104. EXCLUSION FROM AUTHORITY TO ACCESS BUSI- 6 NESS RECORDS FOR FOREIGN INTELLIGENCE 7 AND INTERNATIONAL TERRORISM INVES- 8 TIGATIONS OF INFORMATION THAT WOULD 9 OTHERWISE REQUIRE A WARRANT. 10 Section 501(a) of the Foreign Intelligence Surveil- 11 lance Act of 1978 (50 U.S.C. 1861(a)), as amended by 12 section 101, is further amended by adding at the end the 13 following: 14 ‘‘(5) The authority under paragraph (1) shall not in- 15 clude an application for an order authorizing or requiring 16 the production of a tangible thing if the compelled produc- 17 tion of such thing would require a warrant for law enforce- 18 ment purposes.’’. 19 VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 5675 IH SEC. 105. MODIFICATION OF REQUIREMENTS RELATING TO 1 CONNECTION TO FOREIGN POWER FOR AC- 2 CESS BUSINESS RECORDS FOR FOREIGN IN- 3 TELLIGENCE AND INTERNATIONAL TER- 4 RORISM INVESTIGATIONS. 5 Section 501(b)(2)(B) of the Foreign Intelligence Sur- 6 veillance Act of 1978 (50 U.S.C. 1861(b)(2)(B)), as 7 amended by section 101(b)(1)(A), is amended— 8 (1) by inserting ‘‘and material’’ after ‘‘sought 9 are relevant’’; and 10 (2) by striking ‘‘such things being presump- 11 tively relevant to an authorized investigation if the 12 applicant shows in the statement of facts that they’’ 13 and inserting ‘‘and that such tangible things 14 sought’’. 15 SEC. 106. JUSTIFICATION FOR NONDISCLOSURE REQUIRE- 16 MENT CONCERNING ACCESS BUSINESS 17 RECORDS FOR FOREIGN INTELLIGENCE AND 18 INTERNATIONAL TERRORISM INVESTIGA- 19 TIONS. 20 (a) IN GENERAL.—Section 501 of the Foreign Intel- 21 ligence Surveillance Act of 1978 (50 U.S.C. 1861) is 22 amended— 23 (1) in subsection (b)— 24 (A) in paragraph (1)(B), by striking ‘‘and’’ 25 after the semicolon; 26 VerDate Sep 11 2014 01:35 Jan 25, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5675.IH H5675 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 5675 IH (B) in paragraph (2)(D), by striking the 1 period at the end and inserting ‘‘; and’’; and 2 (C) by adding at the end the following: 3 ‘‘(3) if the applicant is seeking a nondisclosure 4 requirement described in subsection (d), shall in- 5 clude— 6 ‘‘(A) the time period during which the Di- 7 rector of the Federal Bureau of Investigation 8 believes the nondisclosure requirement should 9 apply; 10 ‘‘(B) a statement of facts showing that 11 there are reasonable grounds to believe that dis- 12 closure of [Text truncated for display. 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