USA FREEDOM Reauthorization Act of 2020

II 116TH CONGRESS 2D SESSION S. 3421 To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the production of certain business records, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 9, 2020 Mr. LEE (for himself, Mr. LEAHY, and Mr. CRAMER) 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 prohibit the production of certain business records, 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 ‘‘USA FREEDOM Reauthorization Act of 2020’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. Sec. 2. Amendments to the Foreign Intelligence Surveillance Act of 1978. TITLE I—FISA BUSINESS RECORDS Sec. 101. Repeal of authority to access on an ongoing basis call detail records. VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3421 IS Sec. 102. Civil liberties protections in use of authority to access business records. Sec. 103. Protection of information otherwise requiring warrant. Sec. 104. Protecting Fourth Amendment rights of United States persons. Sec. 105. Use of information. Sec. 106. Exclusions from authority to access business records. Sec. 107. Effective date. TITLE II—FOREIGN INTELLIGENCE SURVEILLANCE COURT Sec. 201. Declassification of significant decisions, orders, and opinions. Sec. 202. Appointment of amici curiae and access to information. Sec. 203. Disclosure of relevant information; Inspector General oversight. Sec. 204. Information provided in annual reports. TITLE III—OTHER MATTERS Sec. 301. Mandatory reporting on certain orders. Sec. 302. Improvements to Privacy and Civil Liberties Oversight Board. Sec. 303. Report on use of FISA authorities regarding protected activities and protected classes. Sec. 304. Sunsets. Sec. 305. Technical amendments. SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE 1 SURVEILLANCE ACT OF 1978. 2 Except as otherwise expressly provided, whenever in 3 this Act an amendment or repeal is expressed in terms 4 of an amendment to, or a repeal of, a section or other 5 provision, the reference shall be considered to be made to 6 a section or other provision of the Foreign Intelligence 7 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). 8 TITLE I—FISA BUSINESS 9 RECORDS 10 SEC. 101. REPEAL OF AUTHORITY TO ACCESS ON AN ONGO- 11 ING BASIS CALL DETAIL RECORDS. 12 (a) CALL DETAIL RECORDS.— 13 (1) REPEAL.—Section 501(b)(2) (50 U.S.C. 14 1861(b)(2)) is amended— 15 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3421 IS (A) by striking subparagraph (C); 1 (B) in subparagraph (B)— 2 (i) in the matter preceding clause (i), 3 by striking ‘‘in the case of’’ and all that 4 follows through ‘‘in subparagraph (C)),’’; 5 and 6 (ii) in clause (iii), by striking the 7 semicolon at the end and inserting ‘‘; 8 and’’; and 9 (C) by redesignating subparagraph (D) as 10 subparagraph (C). 11 (2) PROHIBITION.—Section 501(a) (50 U.S.C. 12 1861(a)) is amended by adding at the end the fol- 13 lowing: 14 ‘‘(4) An application under paragraph (1) may not 15 seek an order authorizing or requiring the production on 16 an ongoing basis of call detail records.’’. 17 (b) CONFORMING AMENDMENTS.— 18 (1) ORDERS.—Section 501(c) (50 U.S.C. 19 1861(c)) is amended— 20 (A) in paragraph (1), by striking ‘‘with 21 subsection (b)(2)(D)’’ and inserting ‘‘with sub- 22 section (b)(2)(C)’’; and 23 (B) in paragraph (2), by striking subpara- 24 graph (F) and inserting the following: 25 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3421 IS ‘‘(F) in the case of an application for call 1 detail records, shall direct the Government— 2 ‘‘(i) to adopt minimization procedures 3 that require the prompt destruction of all 4 call detail records produced under the 5 order that the Government determines are 6 not foreign intelligence information; and 7 ‘‘(ii) to destroy all call detail records 8 produced under the order as prescribed by 9 such procedures.’’. 10 (2) COMPENSATION.—Section 501(j) (50 11 U.S.C. 1861(j)) is amended to read as follows: 12 ‘‘(j) COMPENSATION.—The Government shall com- 13 pensate a person for reasonable expenses incurred for pro- 14 viding technical assistance to the Government under this 15 section.’’. 16 (3) DEFINITIONS.—Section 501(k)(4)(B) (50 17 U.S.C. 1861(k)(4)(B)) is amended by striking ‘‘For 18 purposes of an application submitted under sub- 19 section (b)(2)(C)’’ and inserting ‘‘In the case of an 20 application for a call detail record’’. 21 (4) OVERSIGHT.—Section 502(b) (50 U.S.C. 22 1862(b)) is amended— 23 (A) by striking paragraph (4); and 24 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3421 IS (B) by redesignating paragraphs (5) 1 through (8) as paragraphs (4) through (7), re- 2 spectively. 3 (5) ANNUAL REPORTS.—Section 603 (50 4 U.S.C. 1873) is amended— 5 (A) in subsection (b)— 6 (i) by transferring subparagraph (C) 7 of paragraph (6) to the end of paragraph 8 (5); 9 (ii) in paragraph (5)— 10 (I) in subparagraph (A), by strik- 11 ing ‘‘; and’’ and inserting a semicolon; 12 (II) in subparagraph (B), by 13 striking the semicolon and inserting ‘‘; 14 and’’; and 15 (III) in subparagraph (C), as 16 transferred by clause (i) of this sub- 17 paragraph, by striking ‘‘any database 18 of’’; 19 (iii) by striking paragraph (6); and 20 (iv) by redesignating paragraph (7) as 21 paragraph (6); and 22 (B) in subsection (d)— 23 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3421 IS (i) in paragraph (1), by striking ‘‘any 1 of paragraphs (3), (5), or (6)’’ and insert- 2 ing ‘‘either of paragraphs (3) or (5)’’; and 3 (ii) in paragraph (2)(A), by striking 4 ‘‘Paragraphs (2)(B), (2)(C), and (6)(C)’’ 5 and inserting ‘‘Paragraphs (2)(B) and 6 (2)(C)’’. 7 (6) PUBLIC REPORTING.—Section 604(a)(1)(F) 8 (50 U.S.C. 1874(a)(1)(F)) is amended— 9 (A) in clause (i), by striking the semicolon 10 and inserting ‘‘; and’’; 11 (B) in clause (ii), by striking ‘‘; and’’ and 12 inserting a period; and 13 (C) by striking clause (iii). 14 SEC. 102. CIVIL LIBERTIES PROTECTIONS IN USE OF AU- 15 THORITY TO ACCESS BUSINESS RECORDS. 16 Section 501(a)(2)(B) (50 U.S.C. 1861(a)(2)(B)) is 17 amended by striking ‘‘solely’’ and inserting ‘‘substan- 18 tially’’. 19 SEC. 103. PROTECTION OF INFORMATION OTHERWISE RE- 20 QUIRING WARRANT. 21 Section 501(a) (50 U.S.C. 1861(a)), as amended by 22 section 101 of this Act, is amended by adding at the end 23 the following: 24 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3421 IS ‘‘(5) An application under paragraph (1) may not 1 seek an order authorizing or requiring the production of 2 a tangible thing if the compelled production of such thing 3 would require a warrant for law enforcement purposes.’’. 4 SEC. 104. PROTECTING FOURTH AMENDMENT RIGHTS OF 5 UNITED STATES PERSONS. 6 Section 501(b) (50 U.S.C. 1861(b)), as amended by 7 section 101(a)(1) of this Act, is amended— 8 (1) in paragraph (1), by striking ‘‘and’’ at the 9 end; 10 (2) in paragraph (2), by striking the period at 11 the end and inserting ‘‘; and’’; and 12 (3) by adding at the end the following: 13 ‘‘(3) for an order seeking information con- 14 cerning a known United States person shall dem- 15 onstrate probable cause to believe that the person— 16 ‘‘(A) is an agent of a foreign power; or 17 ‘‘(B) has been or will soon be involved in 18 an act of terrorism or in clandestine intelligence 19 activities in violation of the law.’’. 20 SEC. 105. USE OF INFORMATION. 21 Section 501(h) (50 U.S.C. 1861(h)) is amended— 22 (1) by striking ‘‘Information acquired’’ and in- 23 serting the following: 24 ‘‘(1) IN GENERAL.—Information acquired’’; and 25 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3421 IS (2) by adding at the end the following: 1 ‘‘(2) USE IN TRIALS, HEARINGS, OR OTHER 2 PROCEEDINGS.—For purposes of subsections (b) 3 through (h) of section 106— 4 ‘‘(A) information obtained or derived from 5 the production of tangible things pursuant to 6 an investigation conducted under this section 7 shall be deemed to be information acquired 8 from an electronic surveillance pursuant to title 9 I; and 10 ‘‘(B) in carrying out subparagraph (A), a 11 person shall be deemed to be an aggrieved per- 12 son if— 13 ‘‘(i) the person is the target of such 14 an investigation; or 15 ‘‘(ii) the activities or communications 16 of the person are described in any tangible 17 thing collected pursuant to such an inves- 18 tigation.’’. 19 SEC. 106. EXCLUSIONS FROM AUTHORITY TO ACCESS BUSI- 20 NESS RECORDS. 21 Section 501(k) (50 U.S.C. 1861(k)) is amended by 22 adding at the end the following: 23 ‘‘(5) The term ‘tangible thing’ does not include 24 the following: 25 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3421 IS ‘‘(A) Location information, including cell 1 site location and global positioning system in- 2 formation. 3 ‘‘(B) Internet use information, including 4 website browsing information and internet 5 search history information. 6 ‘‘(C) Medical and health-related records.’’. 7 SEC. 107. EFFECTIVE DATE. 8 The amendments made by this title shall take effect 9 on the date of enactment of this Act and shall apply with 10 respect to applications made under section 501 of the For- 11 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 12 1861) on or after such date. 13 TITLE II—FOREIGN INTEL- 14 LIGENCE SURVEILLANCE 15 COURT 16 SEC. 201. DECLASSIFICATION OF SIGNIFICANT DECISIONS, 17 ORDERS, AND OPINIONS. 18 (a) TIMING OF DECLASSIFICATION.—Section 602(a) 19 (50 U.S.C. 1872(a)) is amended by adding at the end the 20 following: ‘‘The Director shall complete the declassifica- 21 tion review and public release of each such decision, order, 22 or opinion by not later than 180 days after the date on 23 which the Foreign Intelligence Surveillance Court or the 24 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3421 IS Foreign Intelligence Surveillance Court of Review issues 1 such decision, order, or opinion.’’. 2 (b) MATTERS COVERED.—Section 602(a) (50 U.S.C. 3 1872(a)), as amended by subsection (a) of this section, 4 is amended— 5 (1) by striking ‘‘Subject to subsection (b)’’ and 6 inserting ‘‘(1) Subject to subsection (b)’’; 7 (2) by striking ‘‘includes a significant’’ and all 8 that follows through ‘‘, and,’’ and inserting ‘‘is de- 9 scribed in paragraph (2) and,’’; and 10 (3) by adding at the end the following: 11 ‘‘(2) The decisions, orders, or opinions issued 12 by the Foreign Intelligence Surveillance Court or the 13 Foreign Intelligence Surveillance Court of Review 14 described in this paragraph are such decisions, or- 15 ders, or opinions that— 16 ‘‘(A) include a significant construction or 17 interpretation of any provision of law, including 18 any novel or significant construction or inter- 19 pretation of— 20 ‘‘(i) the term ‘specific selection term’; 21 or 22 ‘‘(ii) section 501(a)(5); or 23 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3421 IS ‘‘(B) result from a proceeding in which an 1 amicus curiae has been appointed pursuant to 2 section 103(i).’’. 3 (c) APPLICATION OF REQUIREMENT.— 4 (1) IN GENERAL.—Section 602 of the Foreign 5 Intelligence Surveillance Act of 1978 (50 U.S.C. 6 1872) shall apply with respect to each decision, 7 order, or opinion issued by the Foreign Intelligence 8 Surveillance Court or the Foreign Intelligence Sur- 9 veillance Court of Review before, on, or after the 10 date of enactment of that section. 11 (2) PAST DECISIONS, ORDERS, AND OPIN- 12 IONS.—With respect to each decision, order, or opin- 13 ion described in paragraph (1) that was issued be- 14 fore or on the date of enactment referred to in that 15 paragraph, the Director of National Intelligence 16 shall complete the declassification review and public 17 release of the decision, order, or opinion pursuant to 18 section 602 of the Foreign Intelligence Surveillance 19 Act of 1978 (50 U.S.C. 1872) by not later than 1 20 year after the date of enactment of this Act. 21 SEC. 202. APPOINTMENT OF AMICI CURIAE AND ACCESS TO 22 INFORMATION. 23 (a) EXPANSION OF APPOINTMENT AUTHORITY.— 24 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3421 IS (1) IN GENERAL.—Section 103(i)(2) (50 U.S.C. 1 1803(i)(2)) is amended by striking subparagraph 2 (A) and inserting the following: 3 ‘‘(A) shall appoint an individual who has 4 been designated under paragraph (1) and who 5 possesses expertise in privacy and civil liberties 6 to serve as amicus curiae to assist such court 7 in the consideration of any application for an 8 order or review that, in the opinion of the 9 court— 10 ‘‘(i) presents a novel or significant in- 11 terpretation of the law, unless the court 12 issues a finding that such appointment is 13 not appropriate; 14 ‘‘(ii) presents significant concerns 15 with respect to the activities of a United 16 States person that are protected by the 17 First Amendment to the Constitution of 18 the United States, unless the court issues 19 a finding that such appointment is not ap- 20 propriate; 21 ‘‘(iii) presents or involves a sensitive 22 investigative matter, unless the court 23 issues a finding that such appointment is 24 not appropriate; 25 VerDate Sep 11 2014 23:42 Mar 11, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3421.IS S3421 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 3421 IS ‘‘(iv) presents a request for approval 1 of a [Text truncated for display. 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