In the Senate of the United States, May 14, 2020. Resolved, That the bill from the House of Representa- tives (H.R. 6172) entitled ‘‘An Act to amend the Foreign In- telligence Surveillance Act of 1978 to prohibit the production of certain business records, and for other purposes.’’, do pass with the following AMENDMENTS: Ω1æ In subsection (a)(2)(B) of section 602 of the Foreign 1 Intelligence Surveillance Act of 1978 (50 U.S.C. 1872), 2 as added by section 301(b)(3), insert after ‘‘section 3 103(i)’’ the following: , a proceeding in the Foreign Intel- 4 ligence Court of Review resulting from the petition of an 5 amicus curiae under section 103(i)(7), or a proceeding in 6 which an amicus curiae could have been appointed pursu- 7 ant to section 103(i)(2)(A). 8 Ω2æ In section 302, strike subsections (a) and (b) and in- 9 sert the following: 10 2 † HR 6172 EAS (a) EXPANSION OF APPOINTMENT AUTHORITY.— 1 (1) IN GENERAL.—Section 103(i)(2) (50 U.S.C. 2 1803(i)(2)) is amended— 3 (A) by striking subparagraph (A) and in- 4 serting the following: 5 ‘‘(A) shall appoint one or more individuals 6 who have been designated under paragraph (1), 7 not less than one of whom possesses privacy and 8 civil liberties expertise, unless the court finds 9 that such a qualification is inappropriate, to 10 serve as amicus curiae to assist the court in the 11 consideration of any application or motion for 12 an order or review that, in the opinion of the 13 court— 14 ‘‘(i) presents a novel or significant in- 15 terpretation of the law, unless the court 16 issues a finding that such appointment is 17 not appropriate; 18 ‘‘(ii) presents significant concerns with 19 respect to the activities of a United States 20 person that are protected by the first 21 amendment to the Constitution of the 22 United States, unless the court issues a 23 finding that such appointment is not ap- 24 propriate; 25 3 † HR 6172 EAS ‘‘(iii) presents or involves a sensitive 1 investigative matter, unless the court issues 2 a finding that such appointment is not ap- 3 propriate; 4 ‘‘(iv) presents a request for approval of 5 a new program, a new technology, or a new 6 use of existing technology, unless the court 7 issues a finding that such appointment is 8 not appropriate; 9 ‘‘(v) presents a request for reauthoriza- 10 tion of programmatic surveillance, unless 11 the court issues a finding that such ap- 12 pointment is not appropriate; or 13 ‘‘(vi) otherwise presents novel or sig- 14 nificant civil liberties issues, unless the 15 court issues a finding that such appoint- 16 ment is not appropriate; and’’; and 17 (B) in subparagraph (B), by striking ‘‘an 18 individual or organization’’ each place the term 19 appears and inserting ‘‘one or more individuals 20 or organizations’’. 21 (2) DEFINITION OF SENSITIVE INVESTIGATIVE 22 MATTER.—Subsection (i) of section 103 (50 U.S.C. 23 1803) is amended by adding at the end the following: 24 4 † HR 6172 EAS ‘‘(12) DEFINITION.—In this subsection, the term 1 ‘sensitive investigative matter’ means— 2 ‘‘(A) an investigative matter involving the 3 activities of— 4 ‘‘(i) a domestic public official or polit- 5 ical candidate, or an individual serving on 6 the staff of such an official or candidate; 7 ‘‘(ii) a domestic religious or political 8 organization, or a known or suspected 9 United States person prominent in such an 10 organization; or 11 ‘‘(iii) the domestic news media; or 12 ‘‘(B) any other investigative matter involv- 13 ing a domestic entity or a known or suspected 14 United States person that, in the judgment of the 15 applicable court established under subsection (a) 16 or (b), is as sensitive as an investigative matter 17 described in subparagraph (A).’’. 18 (b) AUTHORITY TO SEEK REVIEW.—Subsection (i) of 19 section 103 (50 U.S.C. 1803), as amended by subsection (a) 20 of this section, is amended— 21 (1) in paragraph (4)— 22 (A) in the paragraph heading, by inserting 23 ‘‘; AUTHORITY’’ after ‘‘DUTIES’’; 24 5 † HR 6172 EAS (B) by redesignating subparagraphs (A), 1 (B), and (C) as clauses (i), (ii), and (iii), respec- 2 tively, and adjusting the margins accordingly; 3 (C) in the matter preceding clause (i), as so 4 designated, by striking ‘‘the amicus curiae shall’’ 5 and inserting the following: ‘‘the amicus cu- 6 riae— 7 ‘‘(A) shall’’; 8 (D) in subparagraph (A)(i), as so des- 9 ignated, by inserting before the semicolon at the 10 end the following: ‘‘, including legal arguments 11 regarding any privacy or civil liberties interest 12 of any United States person that would be sig- 13 nificantly impacted by the application or mo- 14 tion’’; and 15 (E) by striking the period at the end and 16 inserting the following: ‘‘; and 17 ‘‘(B) may seek leave to raise any novel or 18 significant privacy or civil liberties issue rel- 19 evant to the application or motion or other issue 20 directly impacting the legality of the proposed 21 electronic surveillance with the court, regardless 22 of whether the court has requested assistance on 23 that issue.’’; 24 6 † HR 6172 EAS (2) by redesignating paragraphs (7) through (12) 1 as paragraphs (8) through (13), respectively; and 2 (3) by inserting after paragraph (6) the fol- 3 lowing: 4 ‘‘(7) AUTHORITY TO SEEK REVIEW OF DECI- 5 SIONS.— 6 ‘‘(A) FISA COURT DECISIONS.—Following 7 issuance of an order under this Act by the For- 8 eign Intelligence Surveillance Court, an amicus 9 curiae appointed under paragraph (2) may peti- 10 tion the Foreign Intelligence Surveillance Court 11 to certify for review to the Foreign Intelligence 12 Surveillance Court of Review a question of law 13 pursuant to subsection (j). If the court denies 14 such petition, the court shall provide for the 15 record a written statement of the reasons for such 16 denial. Upon certification of any question of law 17 pursuant to this subparagraph, the Court of Re- 18 view shall appoint the amicus curiae to assist 19 the Court of Review in its consideration of the 20 certified question, unless the Court of Review 21 issues a finding that such appointment is not 22 appropriate. 23 ‘‘(B) FISA COURT OF REVIEW DECISIONS.— 24 An amicus curiae appointed under paragraph 25 7 † HR 6172 EAS (2) may petition the Foreign Intelligence Sur- 1 veillance Court of Review to certify for review to 2 the Supreme Court of the United States any 3 question of law pursuant to section 1254(2) of 4 title 28, United States Code. 5 ‘‘(C) DECLASSIFICATION OF REFERRALS.— 6 For purposes of section 602, a petition filed 7 under subparagraph (A) or (B) of this para- 8 graph and all of its content shall be considered 9 a decision, order, or opinion issued by the For- 10 eign Intelligence Surveillance Court or the For- 11 eign Intelligence Surveillance Court of Review 12 described in paragraph (2) of section 602(a).’’. 13 Ω3æ In section 302(c), redesignate paragraph (2) as para- 14 graph (3). 15 Ω4æ In section 302(c), strike paragraph (1) and insert the 16 following: 17 (1) APPLICATION AND MATERIALS.—Subpara- 18 graph (A) of section 103(i)(6) (50 U.S.C. 1803(i)(6)) 19 is amended to read as follows: 20 ‘‘(A) IN GENERAL.— 21 ‘‘(i) RIGHT OF AMICUS.—If a court es- 22 tablished under subsection (a) or (b) ap- 23 8 † HR 6172 EAS points an amicus curiae under paragraph 1 (2), the amicus curiae— 2 ‘‘(I) shall have access to, to the ex- 3 tent such information is available to 4 the Government— 5 ‘‘(aa) the application, certifi- 6 cation, petition, motion, and other 7 information and supporting mate- 8 rials, including any information 9 described in section 901, sub- 10 mitted to the Foreign Intelligence 11 Surveillance Court in connection 12 with the matter in which the ami- 13 cus curiae has been appointed, in- 14 cluding access to any relevant 15 legal precedent (including any 16 such precedent that is cited by the 17 Government, including in such an 18 application); 19 ‘‘(bb) an unredacted copy of 20 each relevant decision made by 21 the Foreign Intelligence Surveil- 22 lance Court or the Foreign Intel- 23 ligence Surveillance Court of Re- 24 view in which the court decides a 25 9 † HR 6172 EAS question of law, without regard to 1 whether the decision is classified; 2 and 3 ‘‘(cc) any other information 4 or materials that the court deter- 5 mines are relevant to the duties of 6 the amicus curiae; and 7 ‘‘(II) may make a submission to 8 the court requesting access to any other 9 particular materials or information 10 (or category of materials or informa- 11 tion) that the amicus curiae believes to 12 be relevant to the duties of the amicus 13 curiae. 14 ‘‘(ii) SUPPORTING DOCUMENTATION 15 REGARDING ACCURACY.—The Foreign Intel- 16 ligence Surveillance Court, upon the motion 17 of an amicus curiae appointed under para- 18 graph (2) or upon its own motion, may re- 19 quire the Government to make available the 20 supporting documentation described in sec- 21 tion 902.’’. 22 (2) CLARIFICATION OF ACCESS TO CERTAIN IN- 23 FORMATION.—Such section is further amended— 24 10 † HR 6172 EAS (A) in subparagraph (B), by striking 1 ‘‘may’’ and inserting ‘‘shall’’; and 2 (B) by striking subparagraph (C) and in- 3 serting the following: 4 ‘‘(C) CLASSIFIED INFORMATION.—An ami- 5 cus curiae appointed by the court shall have ac- 6 cess to, to the extent such information is avail- 7 able to the Government, unredacted copies of 8 each opinion, order, transcript, pleading, or 9 other document of the Foreign Intelligence Sur- 10 veillance Court and the Foreign Intelligence Sur- 11 veillance Court of Review, including, if the indi- 12 vidual is eligible for access to classified informa- 13 tion, any classified documents, information, and 14 other materials or proceedings.’’. 15 Ω5æ Redesignate section 207 as section 208. 16 Ω6æ Insert after section 206 the following: 17 SEC. 207. DISCLOSURE OF RELEVANT INFORMATION; CER- 18 TIFICATION REGARDING ACCURACY PROCE- 19 DURES. 20 (a) DISCLOSURE OF RELEVANT INFORMATION.— 21 (1) IN GENERAL.—The Foreign Intelligence Sur- 22 veillance Act of 1978 (50 U.S.C. 1801 et seq.) is 23 amended by adding at the end the following: 24 11 † HR 6172 EAS ‘‘TITLE IX—DISCLOSURE OF 1 RELEVANT INFORMATION 2 ‘‘SEC. 901. DISCLOSURE OF RELEVANT INFORMATION. 3 ‘‘The Attorney General or any other Federal officer 4 making an application for a court order under this Act 5 shall provide the court with— 6 ‘‘(1) all information in the possession of the Gov- 7 ernment that is material to determining whether the 8 application satisfies the applicable requirements 9 under this Act, including any exculpatory informa- 10 tion; and 11 ‘‘(2) all information in the possession of the Gov- 12 ernment that might reasonably— 13 ‘‘(A) call into question the accuracy of the 14 application or the reasonableness of any assess- 15 ment in the application conducted by the depart- 16 ment or agency on whose behalf the application 17 is made; or 18 ‘‘(B) otherwise raise doubts with respect to 19 the findings that are required to be made under 20 the applicable provision of this Act in order for 21 the court order to be issued.’’. 22 (2) TECHNICAL AMENDMENT.—The table of con- 23 tents of the Foreign Intelligence Surveillance Act of 24 1978 is amended by adding at the end the following: 25 12 † HR 6172 EAS ‘‘TITLE IX—DISCLOSURE OF RELEVANT INFORMATION ‘‘Sec. 901. Disclosure of relevant information.’’. (b) CERTIFICATION REGARDING ACCURACY PROCE- 1 DURES.— 2 (1) IN GENERAL.—Title IX of the Foreign Intel- 3 ligence Surveillance Act of 1978, as added by sub- 4 section (a), is amended by adding at the end the fol- 5 lowing: 6 ‘‘SEC. 902. CERTIFICATION REGARDING ACCURACY PROCE- 7 DURES. 8 ‘‘(a) DEFINITION.—In this section, the term ‘accuracy 9 procedures’ means specific procedures, adopted by the Attor- 10 ney General, to ensure that an application for a court order 11 under this Act, including any application for renewal of 12 an existing order, is accurate and complete, including pro- 13 cedures that ensure, at a minimum, that— 14 ‘‘(1) the application reflects all information that 15 might reasonably call into question the accuracy of 16 the information or the reasonableness of any assess- 17 ment in the application, or otherwise raises doubts 18 about the requested findings; 19 ‘‘(2) the application reflects all material infor- 20 mation that might reasonably call into question the 21 reliability and reporting of any information from a 22 confidential human source that is used in the appli- 23 cation; 24 13 † HR 6172 EAS ‘‘(3) a complete file documenting each factual as- 1 sertion in an application is maintained; 2 ‘‘(4) the applicant coordinates with the appro- 3 priate elements of the intelligence community (as de- 4 fined in section 3 of the National Security Act of 5 1947 (50 U.S.C. 3003)), concerning any prior or ex- 6 isting relationship with the target of any surveillance, 7 search, or other means of investigation, and discloses 8 any such relationship in the application; 9 ‘‘(5) before any application targeting a United 10 States person is made, the applicant Federal officer 11 shall document that the officer has collected and re- 12 viewed for accuracy and completeness supporting doc- 13 umentation for each factual assertion in the applica- 14 tion; and 15 ‘‘(6) the applicant Federal agency establish com- 16 pliance and auditing mechanisms on an annual basis 17 to assess the efficacy of the accuracy procedures that 18 have been adopted and report such findings to the At- 19 torney General. 20 ‘‘(b) STATEMENT AND CERTIFICATION OF ACCURACY 21 PROCEDURES.—Any Federal officer making an application 22 for a court order under this Act shall include with the ap- 23 plication— 24 14 † HR 6172 EAS ‘‘(1) a description of the accuracy procedures 1 employed by the officer or the officer’s designee; and 2 ‘‘(2) a certification that the officer or the officer’s 3 designee has collected and reviewed for accuracy and 4 completeness— 5 ‘‘(A) supporting documentation for each 6 factual assertion contained in the application; 7 ‘‘(B) all information that might reasonably 8 call into question the accuracy of the informa- 9 tion or the reasonableness of any assessment in 10 the application, or otherwise raises doubts about 11 the requested findings; and 12 ‘‘(C) all material information that might 13 reasonably call into question the reliability and 14 reporting of any information from any confiden- 15 tial human source that is used in the applica- 16 tion. 17 ‘‘(c) NECESSARY FINDING FOR COURT ORDERS.—A 18 judge may not enter an order under this Act unless the 19 judge finds, in addition to any other findings required 20 under this Act, that the accuracy procedures described in 21 the application for the order, as required under subsection 22 (b)(1), are act [Text truncated for display. 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