USA FREEDOM Extension and Amici Curiae Reform Act of 2020

II 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘USA FREEDOM Ex- 4 tension and Amici Curiae Reform Act of 2020’’. 5 SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE 6 SURVEILLANCE ACT OF 1978. 7 Except as otherwise expressly provided, whenever in 8 this Act an amendment or repeal is expressed in terms 9 of an amendment to, or a repeal of, a section or other 10 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 2 •S 3420 IS provision, the reference shall be considered to be made to 1 a section or other provision of the Foreign Intelligence 2 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). 3 SEC. 3. APPOINTMENT OF AMICI CURIAE AND ACCESS TO 4 INFORMATION. 5 (a) EXPANSION OF APPOINTMENT AUTHORITY.— 6 (1) IN GENERAL.—Section 103(i)(2) (50 U.S.C. 7 1803(i)(2)) is amended by striking subparagraph 8 (A) and inserting the following: 9 ‘‘(A) shall appoint an individual who has 10 been designated under paragraph (1) and who 11 possesses expertise in privacy and civil liberties 12 to serve as amicus curiae to assist such court 13 in the consideration of any application for an 14 order or review that, in the opinion of the 15 court— 16 ‘‘(i) presents a novel or significant in- 17 terpretation of the law, unless the court 18 issues a finding that such appointment is 19 not appropriate; 20 ‘‘(ii) presents significant concerns 21 with respect to the activities of a United 22 States person that are protected by the 23 first amendment to the Constitution of the 24 United States, unless the court issues a 25 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 3 •S 3420 IS finding that such appointment is not ap- 1 propriate; 2 ‘‘(iii) presents or involves a sensitive 3 investigative matter, unless the court 4 issues a finding that such appointment is 5 not appropriate; 6 ‘‘(iv) presents a request for approval 7 of a new program, a new technology, or a 8 new use of existing technology, unless the 9 court issues a finding that such appoint- 10 ment is not appropriate; 11 ‘‘(v) presents a request for reauthor- 12 ization of programmatic surveillance, un- 13 less the court issues a finding that such 14 appointment is not appropriate; or 15 ‘‘(vi) otherwise presents civil liberties 16 issues, unless the court issues a finding 17 that such appointment is not appropriate; 18 and’’. 19 (2) DEFINITION OF SENSITIVE INVESTIGATIVE 20 MATTER.—Section 103(i) (50 U.S.C. 1803(i)) is 21 amended by adding at the end the following: 22 ‘‘(12) DEFINITION.—In this subsection, the 23 term ‘sensitive investigative matter’ means— 24 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 4 •S 3420 IS ‘‘(A) an investigative matter involving the 1 activities of— 2 ‘‘(i) a domestic public official or polit- 3 ical candidate; 4 ‘‘(ii) a domestic religious or political 5 organization, or an individual prominent in 6 such an organization; or 7 ‘‘(iii) the domestic news media; or 8 ‘‘(B) any other investigative matter that, 9 in the judgment of the applicable court estab- 10 lished under subsection (a) or (b), is as sen- 11 sitive as an investigative matter described in 12 subparagraph (A).’’. 13 (b) AUTHORITY TO SEEK REVIEW.—Section 103(i) 14 (50 U.S.C. 1803(i)), as amended by subsection (a) of this 15 section, is amended— 16 (1) in paragraph (4)— 17 (A) in the paragraph heading, by inserting 18 ‘‘; AUTHORITY’’ after ‘‘DUTIES’’; 19 (B) by redesignating subparagraphs (A), 20 (B), and (C) as clauses (i), (ii), and (iii), re- 21 spectively, and adjusting the margins accord- 22 ingly; 23 (C) in the matter preceding clause (i), as 24 so designated, by striking ‘‘the amicus curiae 25 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 5 •S 3420 IS shall’’ and inserting the following: ‘‘the amicus 1 curiae— 2 ‘‘(A) shall’’; 3 (D) in subparagraph (A)(i), as so des- 4 ignated, by inserting before the semicolon at the 5 end the following: ‘‘, including legal arguments 6 regarding any colorable privacy or civil liberties 7 interest of any aggrieved United States per- 8 son’’; and 9 (E) by striking the period at the end and 10 inserting the following: ‘‘; and 11 ‘‘(B) may raise any issue with the court at 12 any time, regardless of whether the court has 13 requested assistance on that issue.’’; 14 (2) by redesignating paragraphs (7) through 15 (12) as paragraphs (8) through (13), respectively; 16 and 17 (3) by inserting after paragraph (6) the fol- 18 lowing: 19 ‘‘(7) AUTHORITY TO SEEK REVIEW OF DECI- 20 SIONS.— 21 ‘‘(A) FISA COURT DECISIONS.— 22 ‘‘(i) PETITION.—Following issuance of 23 an order under this Act by the Foreign In- 24 telligence Surveillance Court, an amicus 25 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 6 •S 3420 IS curiae appointed under paragraph (2) may 1 petition the court to certify for review to 2 the Foreign Intelligence Surveillance Court 3 of Review a question of law pursuant to 4 subsection (j). 5 ‘‘(ii) APPOINTMENT.—Upon certifi- 6 cation of any question of law pursuant to 7 this subparagraph, the Court of Review 8 shall appoint the amicus curiae to assist 9 the Court of Review in its consideration of 10 the certified question, unless the Court of 11 Review issues a finding that such appoint- 12 ment is not appropriate. 13 ‘‘(B) FISA COURT OF REVIEW DECI- 14 SIONS.—An amicus curiae appointed under 15 paragraph (2) may file a petition for a writ of 16 certiorari from the Supreme Court of the 17 United States for review of any decision by the 18 Foreign Intelligence Surveillance Court of Re- 19 view. 20 ‘‘(C) DECLASSIFICATION OF REFER- 21 RALS.—For purposes of section 602, a petition 22 filed under subparagraph (A) or (B) of this 23 paragraph and all of its content shall be consid- 24 ered a decision, order, or opinion issued by the 25 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 7 •S 3420 IS Foreign Intelligence Surveillance Court or the 1 Foreign Intelligence Surveillance Court of Re- 2 view described in paragraph (2) of section 3 602(a).’’. 4 (c) ACCESS TO INFORMATION.— 5 (1) APPLICATION AND MATERIALS.—Section 6 103(i)(6)(A) (50 U.S.C. 1803(i)(6)(A)) is amended 7 by striking clauses (i) and (ii) and inserting the fol- 8 lowing: 9 ‘‘(i) shall have access to— 10 ‘‘(I) the application, certification, 11 petition, motion, and other informa- 12 tion and supporting materials, sub- 13 mitted to the Foreign Intelligence 14 Surveillance Court in connection with 15 the matter in which the amicus curiae 16 has been appointed, including access 17 to any relevant legal precedent (in- 18 cluding any such precedent that is 19 cited by the Government, including in 20 such an application); 21 ‘‘(II) any other information or 22 materials that the court determines is 23 relevant to the duties of the amicus 24 curiae; and 25 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 8 •S 3420 IS ‘‘(III) an unredacted copy of 1 each relevant decision made by the 2 Foreign Intelligence Surveillance 3 Court or the Foreign Intelligence Sur- 4 veillance Court of Review in which the 5 court decides a question of law, with- 6 out regard to whether the decision is 7 classified; and 8 ‘‘(ii) may make a submission to the 9 court requesting access to any particular 10 materials or information (or category of 11 materials or information) that the amicus 12 curiae believes to be relevant to the duties 13 of the amicus curiae.’’. 14 (2) CLARIFICATION OF ACCESS TO CERTAIN IN- 15 FORMATION.—Section 103(i)(6) (50 U.S.C. 16 1803(i)(6)) is amended— 17 (A) in subparagraph (B), by striking 18 ‘‘may’’ and inserting ‘‘shall’’; and 19 (B) by striking subparagraph (C) and in- 20 serting the following: 21 ‘‘(C) CLASSIFIED INFORMATION.—An ami- 22 cus curiae designated or appointed by the court 23 shall have access to unredacted copies of each 24 opinion, order, transcript, pleading, or other 25 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 9 •S 3420 IS document of the Foreign Intelligence Surveil- 1 lance Court and the Foreign Intelligence Sur- 2 veillance Court of Review, including, if the indi- 3 vidual is eligible for access to classified informa- 4 tion, any classified documents, information, and 5 other materials or proceedings.’’. 6 (3) CONSULTATION AMONG AMICI CURIAE.— 7 Section 103(i)(6) (50 U.S.C. 1803(i)(6)), as amend- 8 ed by paragraphs (1) and (2) of this subsection, is 9 amended— 10 (A) by redesignating subparagraphs (B), 11 (C), and (D) as subparagraphs (C), (D), and 12 (E), respectively; and 13 (B) by inserting after subparagraph (A) 14 the following: 15 ‘‘(B) CONSULTATION.—If the Foreign In- 16 telligence Surveillance Court or the Foreign In- 17 telligence Surveillance Court of Review deter- 18 mines that it is relevant to the duties of an 19 amicus curiae appointed under paragraph (2), 20 the amicus curiae may consult with one or more 21 of the other individuals designated by the court 22 to serve as amicus curiae pursuant to para- 23 graph (1) regarding any of the information rel- 24 evant to any assigned proceeding.’’. 25 VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS 10 •S 3420 IS SEC. 4. SUNSETS. 1 (a) USA PATRIOT IMPROVEMENT AND REAUTHOR- 2 IZATION ACT OF 2005.—Section 102(b)(1) of the USA 3 PATRIOT Improvement and Reauthorization Act of 2005 4 (50 U.S.C. 1805 note) is amended by striking ‘‘March 15, 5 2020’’ and inserting ‘‘June 19, 2020’’. 6 (b) INTELLIGENCE REFORM AND TERRORISM PRE- 7 VENTION ACT OF 2004.—Section 6001(b)(1) of the Intel- 8 ligence Reform and Terrorism Prevention Act of 2004 (50 9 U.S.C. 1801 note) is amended by striking ‘‘March 15, 10 2020’’ and inserting ‘‘June 19, 2020’’. 11 (c) EFFECTIVE DATE.—The amendments made by 12 this section shall take effect on the earlier of the date of 13 the enactment of this Act or March 15, 2020. 14 Æ VerDate Sep 11 2014 03:19 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S3420.IS S3420 kjohnson on DSK79L0C42PROD with BILLS