CHAPTER 36 —FOREIGN INTELLIGENCE SURVEILLANCE
SUBCHAPTER I—ELECTRONIC SURVEILLANCE
SUBCHAPTER II—PHYSICAL SEARCHES
SUBCHAPTER III—PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE PURPOSES
SUBCHAPTER IV—ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES
SUBCHAPTER V—OVERSIGHT
SUBCHAPTER VI—ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE THE UNITED STATES
SUBCHAPTER VII—PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
SUBCHAPTER I—ELECTRONIC SURVEILLANCE
§1801. Definitions
As used in this subchapter:
(a) "Foreign power" means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons;
(6) an entity that is directed and controlled by a foreign government or governments; or
(7) an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.
(b) "Agent of a foreign power" means—
(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4), irrespective of whether the person is inside the United States;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities;
(C) engages in international terrorism or activities in preparation therefore;
(D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or
(E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor, for or on behalf of a foreign power, or knowingly aids or abets any person in the conduct of such proliferation or activities in preparation therefor, or knowingly conspires with any person to engage in such proliferation or activities in preparation therefor; or
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(c) "International terrorism" means activities that—
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended—
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
(d) "Sabotage" means activities that involve a violation of
(e) "Foreign intelligence information" means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(f) "Electronic surveillance" means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
(g) "Attorney General" means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under
(h) "Minimization procedures", with respect to electronic surveillance, means—
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to
(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in
(j) "United States", when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
(k) "Aggrieved person" means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.
(l) "Wire communication" means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
(m) "Person" means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.
(n) "Contents", when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
(o) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
(p) "Weapon of mass destruction" means—
(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in
(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.
(
Amendment of Section
For termination of amendment by
Amendments
2015—Subsec. (b)(1)(A).
Subsec. (b)(1)(B).
Subsec. (b)(1)(E).
2010—Subsecs. (a)(7) to (p).
2008—Subsec. (a)(7).
Subsec. (b)(1)(D), (E).
Subsec. (e)(1)(B).
Subsec. (p).
2006—Subsec. (g).
2004—Subsec. (b)(1)(C).
2001—Subsec. (f)(2).
Subsec. (h)(4).
1999—Subsec. (b)(2)(D), (E).
Effective Date of 2008 Amendment
Termination Date of 2004 Amendment
"(1)
"(2)
[
Effective Date of 2001 Amendment
Effective Date; Exception
Short Title of 2018 Amendment
Short Title of 2015 Amendment
Short Title of 2012 Amendment
Short Title of 2011 Amendment
Short Title of 2008 Amendment
Short Title of 2007 Amendment
Short Title of 2000 Amendment
Short Title
Severability
Transition Procedures
"(a)
"(1)
"(2)
"(A) subject to paragraph (3), section 105A of such Act [
"(B) sections 105B and 105C of the Foreign Intelligence Surveillance Act of 1978 [
"(i) the expiration of such order, authorization, or directive; or
"(ii) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.
"(3)
"(4)
"(5)
"(A) the expiration of all orders, authorizations, or directives referred to in paragraph (1); or
"(B) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.
"(6)
"(A)
"(B)
"(i) made by the Attorney General;
"(ii) submitted as part of a semi-annual report required by section 4 of the Protect America Act of 2007;
"(iii) that states that there will be no further acquisitions carried out under section 105B of the Foreign Intelligence Surveillance Act of 1978 [
"(iv) that states that the information required to be included under such section 4 relating to any acquisition conducted under such section 105B has been included in a semi-annual report required by such section 4.
"(7)
"(A)
"(B)
"(8)
"(b)
"(1)
"(2)
"(A) the expiration of such order, authorization, or directive; or
"(B) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.
"(3)
"(A) section 103(e) of such Act [
"(B) section 702(i)(3) of such Act (as so added) shall continue to apply with respect to any directive issued pursuant to section 702(i) of such Act (as so added);
"(C) section 703(e) of such Act [
"(D) section 706 of such Act [
"(E)
"(4)
"(A)
"(B)
"(i) made by the Attorney General;
"(ii) submitted to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on the Judiciary of the Senate and the House of Representatives;
"(iii) that states that there will be no further acquisitions carried out under title VII of the Foreign Intelligence Surveillance Act of 1978 [
"(iv) that states that the information required to be included in a review, assessment, or report under section 601 of such Act [
"(5)
"(A) the date that authorization expires; or
"(B) the date that is 90 days after the date of the enactment of this Act [July 10, 2008]."
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court
(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of
(3) The Attorney General shall immediately transmit under seal to the court established under
(A) an application for a court order with respect to the surveillance is made under
(B) the certification is necessary to determine the legality of the surveillance under
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under
(
Amendments
2010—Subsec. (a)(3), (4)(B).
2004—Subsec. (a)(3), (4)(B).
Effective Date of 2004 Amendment
For Determination by President that amendment by
Amendment by
Ex. Ord. No. 12139. Exercise of Certain Authority Respecting Electronic Surveillance
Ex. Ord. No. 12139, May 23, 1979, 44 F.R. 30311, as amended by Ex. Ord. No. 13383, §1, July 15, 2005, 70 F.R. 41933; Ex. Ord. No. 13475, §1, Oct. 7, 2008, 73 F.R. 60095, provided:
By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (
1–101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (
1–102. Pursuant to Section 102(b) of the Foreign Intelligence Act of 1978 (
1–103. Pursuant to Section 104(a)(6) of the Foreign Intelligence Surveillance Act of 1978 (
(a) Secretary of State.
(b) Secretary of Defense.
(c) Director of National Intelligence.
(d) Director of the Federal Bureau of Investigation.
(e) Deputy Secretary of State.
(f) Deputy Secretary of Defense.
(g) Director of the Central Intelligence Agency.
(h) Principal Deputy Director of National Intelligence.
(i) Deputy Director of the Federal Bureau of Investigation.
None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President with the advice and consent of the Senate. The requirement of the preceding sentence that the named official must be appointed by the President with the advice and consent of the Senate does not apply to the Deputy Director of the Federal Bureau of Investigation.
[1–104, 1–105. Amended Ex. Ord. No. 12036, formerly set out under section 401 (now 3001) of this title.]
§1803. Designation of judges
(a) Court to hear applications and grant orders; record of denial; transmittal to court of review
(1) The Chief Justice of the United States shall publicly designate 11 district court judges from at least seven of the United States judicial circuits of whom no fewer than 3 shall reside within 20 miles of the District of Columbia who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter, except that no judge designated under this subsection (except when sitting en banc under paragraph (2)) shall hear the same application for electronic surveillance under this chapter which has been denied previously by another judge designated under this subsection. If any judge so designated denies an application for an order authorizing electronic surveillance under this chapter, such judge shall provide immediately for the record a written statement of each reason for his decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established in subsection (b).
(2)(A) The court established under this subsection may, on its own initiative, or upon the request of the Government in any proceeding or a party under
(i) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(ii) the proceeding involves a question of exceptional importance.
(B) Any authority granted by this chapter to a judge of the court established under this subsection may be exercised by the court en banc. When exercising such authority, the court en banc shall comply with any requirements of this chapter on the exercise of such authority.
(C) For purposes of this paragraph, the court en banc shall consist of all judges who constitute the court established under this subsection.
(b) Court of review; record, transmittal to Supreme Court
The Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this chapter. If such court determines that the application was properly denied, the court shall provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
(c) Expeditious conduct of proceedings; security measures for maintenance of records
Proceedings under this chapter shall be conducted as expeditiously as possible. The record of proceedings under this chapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence.
(d) Tenure
Each judge designated under this section shall so serve for a maximum of seven years and shall not be eligible for redesignation, except that the judges first designated under subsection (a) shall be designated for terms of from one to seven years so that one term expires each year, and that judges first designated under subsection (b) shall be designated for terms of three, five, and seven years.
(e) Jurisdiction and procedures for review of petitions
(1) Three judges designated under subsection (a) who reside within 20 miles of the District of Columbia, or, if all of such judges are unavailable, other judges of the court established under subsection (a) as may be designated by the presiding judge of such court, shall comprise a petition review pool which shall have jurisdiction to review petitions filed pursuant to
(2) Not later than 60 days after March 9, 2006, the court established under subsection (a) shall adopt and, consistent with the protection of national security, publish procedures for the review of petitions filed pursuant to
(f) Stay of order
(1) A judge of the court established under subsection (a), the court established under subsection (b) or a judge of that court, or the Supreme Court of the United States or a justice of that court, may, in accordance with the rules of their respective courts, enter a stay of an order or an order modifying an order of the court established under subsection (a) or the court established under subsection (b) entered under any subchapter of this chapter, while the court established under subsection (a) conducts a rehearing, while an appeal is pending to the court established under subsection (b), or while a petition of certiorari is pending in the Supreme Court of the United States, or during the pendency of any review by that court.
(2) The authority described in paragraph (1) shall apply to an order entered under any provision of this chapter.
(g) Establishment and transmittal of rules and procedures
(1) The courts established pursuant to subsections (a) and (b) may establish such rules and procedures, and take such actions, as are reasonably necessary to administer their responsibilities under this chapter.
(2) The rules and procedures established under paragraph (1), and any modifications of such rules and procedures, shall be recorded, and shall be transmitted to the following:
(A) All of the judges on the court established pursuant to subsection (a).
(B) All of the judges on the court of review established pursuant to subsection (b).
(C) The Chief Justice of the United States.
(D) The Committee on the Judiciary of the Senate.
(E) The Select Committee on Intelligence of the Senate.
(F) The Committee on the Judiciary of the House of Representatives.
(G) The Permanent Select Committee on Intelligence of the House of Representatives.
(3) The transmissions required by paragraph (2) shall be submitted in unclassified form, but may include a classified annex.
(h) Compliance with orders, rules, and procedures
Nothing in this chapter shall be construed to reduce or contravene the inherent authority of a court established under this section to determine or enforce compliance with an order or a rule of such court or with a procedure approved by such court.
(i) Amicus curiae
(1) Designation
The presiding judges of the courts established under subsections (a) and (b) shall, not later than 180 days after June 2, 2015, jointly designate not fewer than 5 individuals to be eligible to serve as amicus curiae, who shall serve pursuant to rules the presiding judges may establish. In designating such individuals, the presiding judges may consider individuals recommended by any source, including members of the Privacy and Civil Liberties Oversight Board, the judges determine appropriate.
(2) Authorization
A court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time—
(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate; and
(B) may appoint an individual or organization to serve as amicus curiae, including to provide technical expertise, in any instance as such court deems appropriate or, upon motion, permit an individual or organization leave to file an amicus curiae brief.
(3) Qualifications of amicus curiae
(A) Expertise
Individuals designated under paragraph (1) shall be persons who possess expertise in privacy and civil liberties, intelligence collection, communications technology, or any other area that may lend legal or technical expertise to a court established under subsection (a) or (b).
(B) Security clearance
Individuals designated pursuant to paragraph (1) shall be persons who are determined to be eligible for access to classified information necessary to participate in matters before the courts. Amicus curiae appointed by the court pursuant to paragraph (2) shall be persons who are determined to be eligible for access to classified information, if such access is necessary to participate in the matters in which they may be appointed.
(4) Duties
If a court established under subsection (a) or (b) appoints an amicus curiae under paragraph (2)(A), the amicus curiae shall provide to the court, as appropriate—
(A) legal arguments that advance the protection of individual privacy and civil liberties;
(B) information related to intelligence collection or communications technology; or
(C) legal arguments or information regarding any other area relevant to the issue presented to the court.
(5) Assistance
An amicus curiae appointed under paragraph (2)(A) may request that the court designate or appoint additional amici curiae pursuant to paragraph (1) or paragraph (2), to be available to assist the amicus curiae.
(6) Access to information
(A) In general
If a court established under subsection (a) or (b) appoints an amicus curiae under paragraph (2), the amicus curiae—
(i) shall have access to any legal precedent, application, certification, petition, motion, or such other materials that the court determines are relevant to the duties of the amicus curiae; and
(ii) may, if the court determines that it is relevant to the duties of the amicus curiae, consult with any other individuals designated pursuant to paragraph (1) regarding information relevant to any assigned proceeding.
(B) Briefings
The Attorney General may periodically brief or provide relevant materials to individuals designated pursuant to paragraph (1) regarding constructions and interpretations of this chapter and legal, technological, and other issues related to actions authorized by this chapter.
(C) Classified information
An amicus curiae designated or appointed by the court may have access to classified documents, information, and other materials or proceedings only if that individual is eligible for access to classified information and to the extent consistent with the national security of the United States.
(D) Rule of construction
Nothing in this section shall be construed to require the Government to provide information to an amicus curiae appointed by the court that is privileged from disclosure.
(7) Notification
A presiding judge of a court established under subsection (a) or (b) shall notify the Attorney General of each exercise of the authority to appoint an individual to serve as amicus curiae under paragraph (2).
(8) Assistance
A court established under subsection (a) or (b) may request and receive (including on a nonreimbursable basis) the assistance of the executive branch in the implementation of this subsection.
(9) Administration
A court established under subsection (a) or (b) may provide for the designation, appointment, removal, training, or other support for an individual designated to serve as amicus curiae under paragraph (1) or appointed to serve as amicus curiae under paragraph (2) in a manner that is not inconsistent with this subsection.
(10) Receipt of information
Nothing in this subsection shall limit the ability of a court established under subsection (a) or (b) to request or receive information or materials from, or otherwise communicate with, the Government or amicus curiae appointed under paragraph (2) on an ex parte basis, nor limit any special or heightened obligation in any ex parte communication or proceeding.
(11) Compensation
Notwithstanding any other provision of law, a court established under subsection (a) or (b) may compensate an amicus curiae appointed under paragraph (2) for assistance provided under such paragraph as the court considers appropriate and at such rate as the court considers appropriate.
(j) Review of FISA court decisions
Following issuance of an order under this chapter, a court established under subsection (a) shall certify for review to the court established under subsection (b) any question of law that may affect resolution of the matter in controversy that the court determines warrants such review because of a need for uniformity or because consideration by the court established under subsection (b) would serve the interests of justice. Upon certification of a question of law under this subsection, the court established under subsection (b) may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
(k) Review of FISA court of review decisions
(1) Certification
For purposes of
(2) Amicus curiae briefing
Upon certification of an application under paragraph (1), the Supreme Court of the United States may appoint an amicus curiae designated under subsection (i)(1), or any other person, to provide briefing or other assistance.
(
References in Text
This chapter, referred to in subsecs. (a), (b), (c), (f), (g)(1), (h), (i)(6)(B), and (j), was in the original "this Act", meaning
Amendments
2018—Subsec. (a)(2)(A).
Subsec. (b).
Subsec. (e)(1), (2).
Subsec. (h).
Subsec. (i)(11).
2015—Subsecs. (i) to (k).
2010—Subsec. (c).
Subsecs. (h), (i).
2008—Subsec. (a).
Subsec. (e)(1), (2).
Subsecs. (f), (g).
Subsec. (i).
2007—Subsec. (e).
2006—Subsecs. (e), (f).
2004—Subsec. (c).
2001—Subsec. (a).
Effective Date of 2008 Amendment
Amendment by
Effective and Termination Dates of 2007 Amendment
"(a)
"[(b) Repealed.
"(c)
"(d)
[Repeal by
Effective Date of 2004 Amendment
For Determination by President that amendment by
Amendment by
§1804. Applications for court orders
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(7) a summary statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; and
(9) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter.
(b) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(c) Additional information
The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by
(d) Personal review by Attorney General
(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.
(
Amendments
2010—Subsec. (e)(1)(A).
2008—Subsec. (a)(2) to (4).
Subsec. (a)(5).
Subsec. (a)(6).
Subsec. (a)(7).
Subsec. (a)(8) to (11).
Subsecs. (b) to (e).
2006—Subsec. (a)(3).
2004—Subsec. (e)(1)(A).
2001—Subsec. (a)(7)(B).
2000—Subsec. (e).
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2004 Amendment
For Determination by President that amendment by
Amendment by
Designation of Certain Officials To Make Certifications
For designation of certain officials to make certifications required by subsec. (a)(7) of this section, see Ex. Ord. No. 12139, May 23, 1979, 44 F.R. 30311, set out under
§1805. Issuance of order
(a) Necessary findings
Upon an application made pursuant to
(1) the application has been made by a Federal officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the applicant there is probable cause to believe that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(3) the proposed minimization procedures meet the definition of minimization procedures under
(4) the application which has been filed contains all statements and certifications required by
(b) Determination of probable cause
In determining whether or not probable cause exists for purposes of an order under subsection (a)(2), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
(c) Specifications and directions of orders
(1) Specifications
An order approving an electronic surveillance under this section shall specify—
(A) the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to
(B) the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known;
(C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;
(D) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; and
(E) the period of time during which the electronic surveillance is approved.
(2) Directions
An order approving an electronic surveillance under this section shall direct—
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds, based upon specific facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;
(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.
(3) Special directions for certain orders
An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of—
(A) the nature and location of each new facility or place at which the electronic surveillance is directed;
(B) the facts and circumstances relied upon by the applicant to justify the applicant's belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;
(C) a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and
(D) the total number of electronic surveillances that have been or are being conducted under the authority of the order.
(d) Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated
(1) An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that (A) an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in
(2) Extensions of an order issued under this subchapter may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that (A) an extension of an order under this chapter for a surveillance targeted against a foreign power, as defined in paragraph (5), (6), or (7) of
(3) At or before the end of the period of time for which electronic surveillance is approved by an order or an extension, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(4) A denial of the application made under
(e) Emergency orders
(1) Notwithstanding any other provision of this subchapter, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General—
(A) reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained;
(B) reasonably determines that the factual basis for the issuance of an order under this subchapter to approve such electronic surveillance exists;
(C) informs, either personally or through a designee, a judge having jurisdiction under
(D) makes an application in accordance with this subchapter to a judge having jurisdiction under
(2) If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in
(5) In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other 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 political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(f) Emergencies involving non-United States persons
(1) Notwithstanding any other provision of this chapter, the lawfully authorized targeting of a non-United States person previously believed to be located outside the United States for the acquisition of foreign intelligence information may continue for a period not to exceed 72 hours from the time that the non-United States person is reasonably believed to be located inside the United States and the acquisition is subject to this subchapter or to subchapter II of this chapter, provided that the head of an element of the intelligence community—
(A) reasonably determines that a lapse in the targeting of such non-United States person poses a threat of death or serious bodily harm to any person;
(B) promptly notifies the Attorney General of a determination under subparagraph (A); and
(C) requests, as soon as practicable, the employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to
(2) The authority under this subsection to continue the acquisition of foreign intelligence information is limited to a period not to exceed 72 hours and shall cease upon the earlier of the following:
(A) The employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to
(B) An issuance of a court order under this subchapter or subchapter II of this chapter.
(C) The Attorney General provides direction that the acquisition be terminated.
(D) The head of the element of the intelligence community conducting the acquisition determines that a request under paragraph (1)(C) is not warranted.
(E) When the threat of death or serious bodily harm to any person is no longer reasonably believed to exist.
(3) Nonpublicly available information concerning unconsenting United States persons acquired under this subsection shall not be disseminated during the 72 hour time period under paragraph (1) unless necessary to investigate, reduce, or eliminate the threat of death or serious bodily harm to any person.
(4) If the Attorney General declines to authorize the employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to
(5) Paragraphs (5) and (6) of subsection (e) shall apply to this subsection.
(g) Testing of electronic equipment; discovering unauthorized electronic surveillance; training of intelligence personnel
Notwithstanding any other provision of this subchapter, officers, employees, or agents of the United States are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to—
(1) test the capability of electronic equipment, if—
(A) it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;
(B) the test is limited in extent and duration to that necessary to determine the capability of the equipment;
(C) the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and:
(D) Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;
(2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if—
(A) it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and
(C) any information acquired by such surveillance is used only to enforce
(3) train intelligence personnel in the use of electronic surveillance equipment, if—
(A) it is not reasonable to—
(i) obtain the consent of the persons incidentally subjected to the surveillance;
(ii) train persons in the course of surveillances otherwise authorized by this subchapter; or
(iii) train persons in the use of such equipment without engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and
(C) no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.
(h) Retention of certifications, applications and orders
Certifications made by the Attorney General pursuant to
(i) Bar to legal action
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search.
(j) Pen registers and trap and trace devices
In any case in which the Government makes an application to a judge under this subchapter to conduct electronic surveillance involving communications and the judge grants such application, upon the request of the applicant, the judge shall also authorize the installation and use of pen registers and trap and trace devices, and direct the disclosure of the information set forth in
(
Amendment of Subsection (c)(2)
(2) direct—
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;
(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.
See 2006, 2009, 2010, 2011, 2015, and 2019 Amendment notes below.
[Amendment made by
References in Text
This chapter, referred to in subsecs. (d), (f)(1), and (i), was in the original "this Act", meaning
Codification
As originally enacted,
Amendments
2019—
2018—Subsec. (d)(4).
2015—Subsec. (c)(2).
Subsecs. (f) to (j).
2011—Subsec. (c)(2).
2010—Subsec. (c)(2).
Subsec. (c)(2)(C).
2009—Subsec. (c)(2).
2008—Subsec. (a).
Subsec. (b).
Subsec. (c)(1)(D) to (F).
Subsec. (d).
Subsec. (d)(2).
Subsec. (e).
Subsecs. (f) to (i).
2006—Subsec. (c)(1).
"(1) specify—".
Subsec. (c)(1)(A).
Subsec. (c)(1)(F).
Subsec. (c)(2).
Subsec. (c)(2)(B).
Subsec. (c)(3).
Subsec. (e)(1)(B).
Subsec. (e)(2)(B).
2004—Subsec. (c)(2)(C).
2002—Subsec. (i).
2001—Subsec. (c)(1)(B).
Subsec. (c)(2)(B).
Subsec. (e)(1).
Subsec. (e)(2).
Subsec. (f).
Subsec. (h).
Subsec. (i).
2000—Subsecs. (b), (c).
Subsec. (d).
Subsecs. (e) to (h).
1984—Subsec. (f)(2)(C).
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2006 Amendment
"(1)
"(2)
[
Effective Date of 2004 Amendment
For Determination by President that amendment by
Amendment by
Effective Date of 2002 Amendment
Effective Date of 2001 Amendment
Effective Date of 1984 Amendment
Amendment by
1 See References in Text note below.
§§1805a to 1805c. Repealed. Pub. L. 110–261, title IV, §403(a)(1)(A), July 10, 2008, 122 Stat. 2473
Section 1805a,
Section 1805b,
Section 1805c,
Effective Date of Repeal
Repeal effective July 10, 2008, except as provided in section 404 of
§1806. Use of information
(a) Compliance with minimization procedures; privileged communications; lawful purposes
Information acquired from an electronic surveillance conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this subchapter shall lose its privileged character. No information acquired from an electronic surveillance pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Statement for disclosure
No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
(d) Notification by States or political subdivisions
Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof, against an aggrieved person any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(e) Motion to suppress
Any person against whom evidence obtained or derived from an electronic surveillance to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that—
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(f) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
(g) Suppression of evidence; denial of motion
If the United States district court pursuant to subsection (f) determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(h) Finality of orders
Orders granting motions or requests under subsection (g), decisions under this section that electronic surveillance was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to a surveillance shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.
(i) Destruction of unintentionally acquired information
In circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.
(j) Notification of emergency employment of electronic surveillance; contents; postponement, suspension or elimination
If an emergency employment of electronic surveillance is authorized under subsection (e) or (f) of
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Coordination with law enforcement on national security matters
(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this subchapter may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 1804(a)(7)(B) 1 of this title or the entry of an order under
(
References in Text
This chapter, referred to in subsec. (f), was in the original "this Act", meaning
Amendments
2015—Subsec. (j).
2008—Subsec. (i).
Subsec. (k)(1)(B).
2002—Subsec. (k)(1).
2001—Subsec. (k).
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2002 Amendment
Amendment by
Report on Mechanisms for Determinations of Disclosure of Information for Law Enforcement Purposes
"(1) The Attorney General shall submit to the appropriate committees of Congress a report on the authorities and procedures utilized by the Department of Justice for determining whether or not to disclose information acquired under the Foreign Intelligence Surveillance Act of 1978 (
"(2) In this subsection, the term 'appropriate committees of Congress' means the following:
"(A) The Select Committee on Intelligence and the Committee on the Judiciary of the Senate.
"(B) The Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives."
1 See References in Text note below.
§1807. Report of electronic surveillance
(a) Annual report
In April of each year, the Attorney General shall transmit to the Administrative Office of the United States Courts and to the congressional intelligence committees and the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding calendar year—
(1) the total number of applications made for orders and extensions of orders approving electronic surveillance under this subchapter;
(2) the total number of such orders and extensions either granted, modified, or denied; and
(3) the total number of subjects targeted by electronic surveillance conducted under an order or emergency authorization under this subchapter, rounded to the nearest 500, including the number of such individuals who are United States persons, reported to the nearest band of 500, starting with 0–499.
(b) Form
Each report under subsection (a) shall be submitted in unclassified form, to the extent consistent with national security. Not later than 7 days after the date on which the Attorney General submits each such report, the Attorney General shall make the report publicly available, or, if the Attorney General determines that the report cannot be made publicly available consistent with national security, the Attorney General may make publicly available an unclassified summary of the report or a redacted version of the report.
(
Amendments
2018—
§1808. Report of Attorney General to Congressional committees; limitation on authority or responsibility of information gathering activities of Congressional committees; report of Congressional committees to Congress
(a)(1) On a semiannual basis the Attorney General shall fully inform the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate concerning all electronic surveillance under this subchapter. Nothing in this subchapter shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.
(2) Each report under the first sentence of paragraph (1) shall include a description of—
(A) the total number of applications made for orders and extensions of orders approving electronic surveillance under this subchapter where the nature and location of each facility or place at which the electronic surveillance will be directed is unknown;
(B) each criminal case in which information acquired under this chapter has been authorized for use at trial during the period covered by such report;
(C) the total number of emergency employments of electronic surveillance under
(D) the total number of authorizations under
(b) On or before one year after October 25, 1978, and on the same day each year for four years thereafter, the Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence shall report respectively to the House of Representatives and the Senate, concerning the implementation of this chapter. Said reports shall include but not be limited to an analysis and recommendations concerning whether this chapter should be (1) amended, (2) repealed, or (3) permitted to continue in effect without amendment.
(
References in Text
Section 301, referred to in subsec. (a)(2)(D), means section 301 of
This chapter, referred to in subsec. (b), was in the original "this Act", meaning
Amendments
2015—Subsec. (a)(1).
Subsec. (a)(2)(D).
2008—Subsec. (a)(2)(C).
2006—Subsec. (a)(1).
Subsec. (a)(2).
"(A) each criminal case in which information acquired under this chapter has been passed for law enforcement purposes during the period covered by such report; and
"(B) each criminal case in which information acquired under this chapter has been authorized for use at trial during such reporting period."
2000—Subsec. (a).
Effective Date of 2008 Amendment
Amendment by
1 See References in Text note below.
§1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by this chapter,
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this chapter,
(b) Defense
It is a defense to a prosecution under subsection (a) that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
(
References in Text
This chapter, referred to in subsec. (a), was in the original "this Act", meaning
Amendments
2010—Subsec. (a)(1).
Subsec. (a)(2).
2008—Subsec. (a).
Effective Date of 2008 Amendment
Amendment by
§1810. Civil liability
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.
(
§1811. Authorization during time of war
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
(
§1812. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
(
References in Text
This chapter, referred to in text, was in the original "this Act", meaning
Effective Date of 2008 Amendment
Amendment by
§1813. Procedures for the retention of incidentally acquired communications
(a) Definitions
In this section:
(1) Covered communication
The term "covered communication" means any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage.
(2) Head of an element of the intelligence community
The term "head of an element of the intelligence community" means, as appropriate—
(A) the head of an element of the intelligence community; or
(B) the head of the department or agency containing such element.
(3) United States person
The term "United States person" has the meaning given that term in
(b) Procedures for covered communications
(1) Requirement to adopt
Not later than 2 years after December 19, 2014, each head of an element of the intelligence community shall adopt procedures approved by the Attorney General for such element that ensure compliance with the requirements of paragraph (3).
(2) Coordination and approval
The procedures required by paragraph (1) shall be—
(A) prepared in coordination with the Director of National Intelligence; and
(B) approved by the Attorney General prior to issuance.
(3) Procedures
(A) Application
The procedures required by paragraph (1) shall apply to any intelligence collection activity not otherwise authorized by court order (including an order or certification issued by a court established under subsection (a) or (b) of
(B) Limitation on retention
A covered communication shall not be retained in excess of 5 years, unless—
(i) the communication has been affirmatively determined, in whole or in part, to constitute foreign intelligence or counterintelligence or is necessary to understand or assess foreign intelligence or counterintelligence;
(ii) the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency;
(iii) the communication is enciphered or reasonably believed to have a secret meaning;
(iv) all parties to the communication are reasonably believed to be non-United States persons;
(v) retention is necessary to protect against an imminent threat to human life, in which case both the nature of the threat and the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the date such retention is extended under this clause;
(vi) retention is necessary for technical assurance or compliance purposes, including a court order or discovery obligation, in which case access to information retained for technical assurance or compliance purposes shall be reported to the congressional intelligence committees on an annual basis; or
(vii) retention for a period in excess of 5 years is approved by the head of the element of the intelligence community responsible for such retention, based on a determination that retention is necessary to protect the national security of the United States, in which case the head of such element shall provide to the congressional intelligence committees a written certification describing—
(I) the reasons extended retention is necessary to protect the national security of the United States;
(II) the duration for which the head of the element is authorizing retention;
(III) the particular information to be retained; and
(IV) the measures the element of the intelligence community is taking to protect the privacy interests of United States persons or persons located inside the United States.
(
Codification
Section was enacted as part of the Intelligence Authorization Act for Fiscal Year 2015, and not as part of the Foreign Intelligence Surveillance Act of 1978 which comprises this chapter.
Definitions
For definitions of "congressional intelligence committees" and "intelligence community" as used in this section, see section 2 of
SUBCHAPTER II—PHYSICAL SEARCHES
§1821. Definitions
As used in this subchapter:
(1) The terms "foreign power", "agent of a foreign power", "international terrorism", "sabotage", "foreign intelligence information", "Attorney General", "United States person", "United States", "person", "weapon of mass destruction", and "State" shall have the same meanings as in
(2) "Aggrieved person" means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.
(3) "Foreign Intelligence Surveillance Court" means the court established by
(4) "Minimization procedures" with respect to physical search, means—
(A) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(D) notwithstanding subparagraphs (A), (B), and (C), with respect to any physical search approved pursuant to
(5) "Physical search" means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) "electronic surveillance", as defined in
(
Prior Provisions
A prior section 301 of
Amendments
2010—Par. (1).
2008—Par. (1).
2001—Par. (4)(D).
Effective Date of 2008 Amendment
Amendment by
Effective Date
§1822. Authorization of physical searches for foreign intelligence purposes
(a) Presidential authorization
(1) Notwithstanding any other provision of law, the President, acting through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if—
(A) the Attorney General certifies in writing under oath that—
(i) the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers (as defined in
(ii) there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person; and
(iii) the proposed minimization procedures with respect to such physical search meet the definition of minimization procedures under subparagraphs (A) through (D) of
(B) the Attorney General reports such minimization procedures and any changes thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate at least 30 days before their effective date, unless the Attorney General determines that immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) A physical search authorized by this subsection may be conducted only in accordance with the certification and minimization procedures adopted by the Attorney General. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of
(3) The Attorney General shall immediately transmit under seal to the Foreign Intelligence Surveillance Court a copy of the certification. Such certification shall be maintained under security measures established by the Chief Justice of the United States with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the physical search is made under
(B) the certification is necessary to determine the legality of the physical search under
(4)(A) With respect to physical searches authorized by this subsection, the Attorney General may direct a specified landlord, custodian, or other specified person to—
(i) furnish all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search; and
(ii) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain.
(B) The Government shall compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid.
(b) Application for order; authorization
Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the Foreign Intelligence Surveillance Court. Notwithstanding any other provision of law, a judge of the court to whom application is made may grant an order in accordance with
(c) Jurisdiction of Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court shall have jurisdiction to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States under the procedures set forth in this subchapter, except that no judge (except when sitting en banc) shall hear the same application which has been denied previously by another judge designated under
(d) Court of review; record; transmittal to Supreme Court
The court of review established under
(e) Expeditious conduct of proceedings; security measures for maintenance of records
Judicial proceedings under this subchapter shall be concluded as expeditiously as possible. The record of proceedings under this subchapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice of the United States in consultation with the Attorney General and the Director of National Intelligence.
(
Amendments
2018—Subsec. (a)(1)(A)(iii).
Subsec. (d).
2010—Subsecs. (a)(3), (4)(A)(ii), (e).
2008—Subsec. (c).
2004—Subsecs. (a)(3), (4)(A)(ii), (e).
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2004 Amendment
For Determination by President that amendment by
Amendment by
Effective Date
Section effective 90 days after Oct. 14, 1994, with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see section 807(c) of
Ex. Ord. No. 12949. Foreign Intelligence Physical Searches
Ex. Ord. No. 12949, Feb. 9, 1995, 60 F.R. 8169, as amended by Ex. Ord. No. 13383, §2, July 15, 2005, 70 F.R. 41933; Ex. Ord. No. 13475, §2, Oct. 7, 2008, 73 F.R. 60095, provided:
By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (
(a) Secretary of State;
(b) Secretary of Defense;
[(c)] Director of National Intelligence;
(d) Director of the Federal Bureau of Investigation,
(e) Deputy Secretary of State;
(f) Deputy Secretary of Defense;
(g) Director of the Central Intelligence Agency;
(h) Principal Deputy Director of National Intelligence; and
(i) Deputy Director of the Federal Bureau of Investigation.
None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advice and consent of the Senate. The requirement of the preceding sentence that the named official must be appointed by the President with the advice and consent of the Senate does not apply to the Deputy Director of the Federal Bureau of Investigation.
§1823. Application for order
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving a physical search under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfies the criteria and requirements for such application as set forth in this subchapter. Each application shall include—
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the target of the search, and a description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;
(3) a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that—
(A) the target of the physical search is a foreign power or an agent of a foreign power;
(B) the premises or property to be searched contains foreign intelligence information; and
(C) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive branch officers employed in the area of national security or defense and appointed by the President, by and with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the search is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in
(E) includes a statement explaining the basis for the certifications required by subparagraphs (C) and (D);
(7) where the physical search involves a search of the residence of a United States person, the Attorney General shall state what investigative techniques have previously been utilized to obtain the foreign intelligence information concerned and the degree to which these techniques resulted in acquiring such information; and
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.
(b) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(c) Additional information
The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by
(d) Personal review by Attorney General
(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.
(
Amendments
2010—Subsec. (d)(1)(A).
2008—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4), (5).
Subsec. (a)(6).
Subsec. (a)(7) to (9).
Subsec. (d)(1)(A).
2004—Subsec. (d)(1)(A).
2001—Subsec. (a)(7)(B).
2000—Subsec. (d).
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2004 Amendment
For Determination by President that amendment by
Amendment by
Effective Date
Section effective 90 days after Oct. 14, 1994, with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see section 807(c) of
Officials Designated To Make Certifications
For provisions listing officials designated by President to make certifications required by subsec. (a)(7) of this section, see Ex. Ord. No. 12949, §3, Feb. 9, 1995, 60 F.R. 8169, set out as a note under
§1824. Issuance of order
(a) Necessary findings
Upon an application made pursuant to
(1) the application has been made by a Federal officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the applicant there is probable cause to believe that—
(A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power;
(3) the proposed minimization procedures meet the definition of minimization contained in this subchapter; and
(4) the application which has been filed contains all statements and certifications required by
(b) Determination of probable cause
In determining whether or not probable cause exists for purposes of an order under subsection (a)(2), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
(c) Specifications and directions of orders
An order approving a physical search under this section shall—
(1) specify—
(A) the identity, if known, or a description of the target of the physical search;
(B) the nature and location of each of the premises or property to be searched;
(C) the type of information, material, or property to be seized, altered, or reproduced;
(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and
(E) the period of time during which physical searches are approved; and
(2) direct—
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search;
(C) that such landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain;
(D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and
(E) that the Federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.
(d) Duration of order; extensions; assessment of compliance
(1) An order issued under this section may approve a physical search for the period necessary to achieve its purpose, or for 90 days, whichever is less, except that (A) an order under this section shall approve a physical search targeted against a foreign power, as defined in paragraph (1), (2), or (3) of
(2) Extensions of an order issued under this subchapter may be granted on the same basis as the original order upon an application for an extension and new findings made in the same manner as required for the original order, except that an extension of an order under this chapter for a physical search targeted against a foreign power, as defined in paragraph (5), (6), or (7) of
(3) At or before the end of the period of time for which a physical search is approved by an order or an extension, or at any time after a physical search is carried out, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(e) Emergency orders
(1) Notwithstanding any other provision of this subchapter, the Attorney General may authorize the emergency employment of a physical search if the Attorney General—
(A) reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;
(B) reasonably determines that the factual basis for issuance of an order under this subchapter to approve such physical search exists;
(C) informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and
(D) makes an application in accordance with this subchapter to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.
(2) If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in
(5) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search shall be received in evidence or otherwise disclosed in any trial, hearing, or other 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 political subdivision thereof, and no information concerning any United States person acquired from such physical search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(f) Retention of applications and orders
Applications made and orders granted under this subchapter shall be retained for a period of at least 10 years from the date of the application.
(
References in Text
This chapter, referred to in subsec. (d)(2), was in the original "this Act", meaning
Amendments
2010—Subsec. (b).
Subsec. (c)(2)(C).
2008—Subsec. (a).
Subsec. (d)(2).
Subsec. (e).
2006—Subsec. (d)(1)(B), (2).
2004—Subsec. (c)(2)(C).
2001—Subsec. (d)(1).
Subsec. (d)(2).
Subsec. (e)(1)(A)(ii), (3)(C).
2000—Subsecs. (b) to (f).
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2004 Amendment
For Determination by President that amendment by
Amendment by
Effective Date
Section effective 90 days after Oct. 14, 1994, with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see section 807(c) of
§1825. Use of information
(a) Compliance with minimization procedures; lawful purposes
Information acquired from a physical search conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No information acquired from a physical search pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Notice of search and identification of property seized, altered, or reproduced
Where a physical search authorized and conducted pursuant to
(c) Statement for disclosure
No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(d) Notification by United States
Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from a physical search pursuant to the authority of this subchapter, the United States shall, prior to the trial, hearing, or the other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.
(e) Notification by States or political subdivisions
Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof against an aggrieved person any information obtained or derived from a physical search pursuant to the authority of this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(f) Motion to suppress
(1) Any person against whom evidence obtained or derived from a physical search to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such search on the grounds that—
(A) the information was unlawfully acquired; or
(B) the physical search was not made in conformity with an order of authorization or approval.
(2) Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(g) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (d) or (e), or whenever a motion is made pursuant to subsection (f), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to a physical search authorized by this subchapter or to discover, obtain, or suppress evidence or information obtained or derived from a physical search authorized by this subchapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other provision of law, if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the physical search, or may require the Attorney General to provide to the aggrieved person a summary of such materials, only where such disclosure is necessary to make an accurate determination of the legality of the physical search.
(h) Suppression of evidence; denial of motion
If the United States district court pursuant to subsection (g) determines that the physical search was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the physical search was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(i) Finality of orders
Orders granting motions or requests under subsection (h), decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States Court of Appeals or the Supreme Court.
(j) Notification of emergency execution of physical search; contents; postponement, suspension, or elimination
(1) If an emergency execution of a physical search is authorized under section 1824(d) 1 of this title and a subsequent order approving the search is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to the search as the judge may determine in his discretion it is in the interests of justice to serve, notice of—
(A) the fact of the application;
(B) the period of the search; and
(C) the fact that during the period information was or was not obtained.
(2) On an ex parte showing of good cause to the judge, the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed 90 days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Coordination with law enforcement on national security matters
(1) Federal officers who conduct physical searches to acquire foreign intelligence information under this subchapter may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by
(
References in Text
This chapter, referred to in subsec. (b), was in the original "this Act", meaning
Amendments
2008—Subsec. (k)(1)(B).
Subsec. (k)(2).
2002—Subsec. (k)(1).
2001—Subsec. (k).
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2002 Amendment
Amendment by
Effective Date
Section effective 90 days after Oct. 14, 1994, with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see section 807(c) of
1 See References in Text note below.
§1826. Congressional oversight
On a semiannual basis the Attorney General shall fully inform the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate concerning all physical searches conducted pursuant to this subchapter. On a semiannual basis the Attorney General shall also provide to those committees a report setting forth with respect to the preceding six-month period—
(1) the total number of applications made for orders approving physical searches under this subchapter;
(2) the total number of such orders either granted, modified, or denied;
(3) the number of physical searches which involved searches of the residences, offices, or personal property of United States persons, and the number of occasions, if any, where the Attorney General provided notice pursuant to
(4) the total number of emergency physical searches authorized by the Attorney General under
(
Amendments
2015—
2006—
Par. (4).
Effective Date
Section effective 90 days after Oct. 14, 1994, with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see section 807(c) of
§1827. Penalties
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) under color of law for the purpose of obtaining foreign intelligence information, executes a physical search within the United States except as authorized by statute; or
(2) discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute, for the purpose of obtaining intelligence information.
(b) Defense
It is a defense to a prosecution under subsection (a) that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the physical search was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Fine or imprisonment
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
(
Effective Date
Section effective 90 days after Oct. 14, 1994, with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see section 807(c) of
§1828. Civil liability
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A), respectively, of this title, whose premises, property, information, or material has been subjected to a physical search within the United States or about whom information obtained by such a physical search has been disclosed or used in violation of
(1) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(2) punitive damages; and
(3) reasonable attorney's fees and other investigative and litigation costs reasonably incurred.
(
Effective Date
Section effective 90 days after Oct. 14, 1994, with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see section 807(c) of
§1829. Authorization during time of war
Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.
(
Effective Date
Section effective 90 days after Oct. 14, 1994, with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see section 807(c) of
SUBCHAPTER III—PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE PURPOSES
§1841. Definitions
As used in this subchapter:
(1) The terms "foreign power", "agent of a foreign power", "international terrorism", "foreign intelligence information", "Attorney General", "United States person", "United States", "person", and "State" shall have the same meanings as in
(2) The terms "pen register" and "trap and trace device" have the meanings given such terms in
(3) The term "aggrieved person" means any person—
(A) whose telephone line was subject to the installation or use of a pen register or trap and trace device authorized by this subchapter; or
(B) whose communication instrument or device was subject to the use of a pen register or trap and trace device authorized by this subchapter to capture incoming electronic or other communications impulses.
(4)(A) The term "specific selection term"—
(i) is a term that specifically identifies a person, account, address, or personal device, or any other specific identifier; and
(ii) is used to limit, to the greatest extent reasonably practicable, the scope of information sought, consistent with the purpose for seeking the use of the pen register or trap and trace device.
(B) A specific selection term under subparagraph (A) does not include an identifier that does not limit, to the greatest extent reasonably practicable, the scope of information sought, consistent with the purpose for seeking the use of the pen register or trap and trace device, such as an identifier that—
(i) identifies an electronic communication service provider (as that term is defined in
(ii) identifies a broad geographic region, including the United States, a city, a county, a State, a zip code, or an area code, when not used as part of a specific identifier as described in subparagraph (A).
(C) For purposes of subparagraph (A), the term "address" means a physical address or electronic address, such as an electronic mail address or temporarily assigned network address (including an Internet protocol address).
(D) Nothing in this paragraph shall be construed to preclude the use of multiple terms or identifiers to meet the requirements of subparagraph (A).
(
Prior Provisions
A prior section 401 of
Amendments
2015—Par. (4).
§1842. Pen registers and trap and trace devices for foreign intelligence and international terrorism investigations
(a) Application for authorization or approval
(1) Notwithstanding any other provision of law, the Attorney General or a designated attorney for the Government may make an application for an order or an extension of an order authorizing or approving the installation and use of a pen register or trap and trace device for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution which is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor order.
(2) The authority under paragraph (1) is in addition to the authority under subchapter I of this chapter to conduct the electronic surveillance referred to in that paragraph.
(b) Form of application; recipient
Each application under this section shall be in writing under oath or affirmation to—
(1) a judge of the court established by
(2) a United States Magistrate Judge under
(c) Executive approval; contents of application
Each application under this section shall require the approval of the Attorney General, or a designated attorney for the Government, and shall include—
(1) the identity of the Federal officer seeking to use the pen register or trap and trace device covered by the application;
(2) a certification by the applicant that the information likely to be obtained is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution; and
(3) a specific selection term to be used as the basis for the use of the pen register or trap and trace device.
(d) Ex parte judicial order of approval
(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the installation and use of a pen register or trap and trace device if the judge finds that the application satisfies the requirements of this section.
(2) An order issued under this section—
(A) shall specify—
(i) the identity, if known, of the person who is the subject of the investigation;
(ii) the identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied; and
(iii) the attributes of the communications to which the order applies, such as the number or other identifier, and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied and, in the case of a trap and trace device, the geographic limits of the trap and trace order;
(B) shall direct that—
(i) upon request of the applicant, the provider of a wire or electronic communication service, landlord, custodian, or other person shall furnish any information, facilities, or technical assistance necessary to accomplish the installation and operation of the pen register or trap and trace device in such a manner as will protect its secrecy and produce a minimum amount of interference with the services that such provider, landlord, custodian, or other person is providing the person concerned;
(ii) such provider, landlord, custodian, or other person—
(I) shall not disclose the existence of the investigation or of the pen register or trap and trace device to any person unless or until ordered by the court; and
(II) shall maintain, under security procedures approved by the Attorney General and the Director of National Intelligence pursuant to section 1805(b)(2)(C) 1 of this title, any records concerning the pen register or trap and trace device or the aid furnished; and
(iii) the applicant shall compensate such provider, landlord, custodian, or other person for reasonable expenses incurred by such provider, landlord, custodian, or other person in providing such information, facilities, or technical assistance; and
(C) shall direct that, upon the request of the applicant, the provider of a wire or electronic communication service shall disclose to the Federal officer using the pen register or trap and trace device covered by the order—
(i) in the case of the customer or subscriber using the service covered by the order (for the period specified by the order)—
(I) the name of the customer or subscriber;
(II) the address of the customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or identifier, of the customer or subscriber, including any temporarily assigned network address or associated routing or transmission information;
(IV) the length of the provision of service by such provider to the customer or subscriber and the types of services utilized by the customer or subscriber;
(V) in the case of a provider of local or long distance telephone service, any local or long distance telephone records of the customer or subscriber;
(VI) if applicable, any records reflecting period of usage (or sessions) by the customer or subscriber; and
(VII) any mechanisms and sources of payment for such service, including the number of any credit card or bank account utilized for payment for such service; and
(ii) if available, with respect to any customer or subscriber of incoming or outgoing communications to or from the service covered by the order—
(I) the name of such customer or subscriber;
(II) the address of such customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or identifier, of such customer or subscriber, including any temporarily assigned network address or associated routing or transmission information; and
(IV) the length of the provision of service by such provider to such customer or subscriber and the types of services utilized by such customer or subscriber.
(3) A denial of the application made under this subsection may be reviewed as provided in
(e) Time limitation
(1) Except as provided in paragraph (2), an order issued under this section shall authorize the installation and use of a pen register or trap and trace device for a period not to exceed 90 days. Extensions of such an order may be granted, but only upon an application for an order under this section and upon the judicial finding required by subsection (d). The period of extension shall be for a period not to exceed 90 days.
(2) In the case of an application under subsection (c) where the applicant has certified that the information likely to be obtained is foreign intelligence information not concerning a United States person, an order, or an extension of an order, under this section may be for a period not to exceed one year.
(f) Cause of action barred
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance under subsection (d) in accordance with the terms of an order issued under this section.
(g) Furnishing of results
Unless otherwise ordered by the judge, the results of a pen register or trap and trace device shall be furnished at reasonable intervals during regular business hours for the duration of the order to the authorized Government official or officials.
(h) Privacy procedures
(1) In general
The Attorney General shall ensure that appropriate policies and procedures are in place to safeguard nonpublicly available information concerning United States persons that is collected through the use of a pen register or trap and trace device installed under this section. Such policies and procedures shall, to the maximum extent practicable and consistent with the need to protect national security, include privacy protections that apply to the collection, retention, and use of information concerning United States persons.
(2) Rule of construction
Nothing in this subsection limits the authority of the court established under
(
References in Text
Executive Order No. 12333, referred to in subsec. (a)(1), is set out as a note under
Amendments
2018—Subsec. (d)(3).
2015—Subsec. (c)(3).
Subsec. (h).
2010—Subsec. (d)(2)(B)(ii)(II).
2006—Subsec. (d)(2)(A).
Subsec. (d)(2)(C).
Subsec. (e).
2004—Subsec. (d)(2)(B)(ii)(II).
2001—Subsec. (a)(1).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (c)(3).
"(A) an individual who is engaging or has engaged in international terrorism or clandestine intelligence activities that involve or may involve a violation of the criminal laws of the United States; or
"(B) a foreign power or agent of a foreign power under circumstances giving reason to believe that the communication concerns or concerned international terrorism or clandestine intelligence activities that involve or may involve a violation of the criminal laws of the United States."
Subsec. (d)(2)(A).
"(i) the identity, if known, of the person who is the subject of the foreign intelligence or international terrorism investigation;
"(ii) in the case of an application for the installation and use of a pen register or trap and trace device with respect to a telephone line—
"(I) the identity, if known, of the person to whom is leased or in whose name the telephone line is listed; and
"(II) the number and, if known, physical location of the telephone line; and
"(iii) in the case of an application for the use of a pen register or trap and trace device with respect to a communication instrument or device not covered by clause (ii)—
"(I) the identity, if known, of the person who owns or leases the instrument or device or in whose name the instrument or device is listed; and
"(II) the number of the instrument or device; and".
Subsec. (f).
Effective Date of 2004 Amendment
For Determination by President that amendment by
Amendment by
1 See References in Text note below.
§1843. Authorization during emergencies
(a) Requirements for authorization
Notwithstanding any other provision of this subchapter, when the Attorney General makes a determination described in subsection (b), the Attorney General may authorize the installation and use of a pen register or trap and trace device on an emergency basis to gather foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution if—
(1) a judge referred to in
(2) an application in accordance with
(b) Determination of emergency and factual basis
A determination under this subsection is a reasonable determination by the Attorney General that—
(1) an emergency requires the installation and use of a pen register or trap and trace device to obtain foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution before an order authorizing the installation and use of the pen register or trap and trace device, as the case may be, can with due diligence be obtained under
(2) the factual basis for issuance of an order under such
(c) Effect of absence of order
(1) In the absence of an order applied for under subsection (a)(2) approving the installation and use of a pen register or trap and trace device authorized under this section, the installation and use of the pen register or trap and trace device, as the case may be, shall terminate at the earlier of—
(A) when the information sought is obtained;
(B) when the application for the order is denied under
(C) 7 days after the time of the authorization by the Attorney General.
(2) In the event that an application for an order applied for under subsection (a)(2) is denied, or in any other case where the installation and use of a pen register or trap and trace device under this section is terminated and no order under
(3) A denial of the application made under subsection (a)(2) may be reviewed as provided in
(d) Privacy procedures
Information collected through the use of a pen register or trap and trace device installed under this section shall be subject to the policies and procedures required under
(
Amendments
2018—Subsec. (c)(3).
2015—Subsec. (d).
2008—Subsecs. (a)(2), (c)(1)(C).
2001—Subsec. (a).
Subsec. (b)(1).
Effective Date of 2008 Amendment
Amendment by
§1844. Authorization during time of war
Notwithstanding any other provision of law, the President, through the Attorney General, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by Congress.
(
§1845. Use of information
(a) In general
(1) Information acquired from the use of a pen register or trap and trace device installed pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the provisions of this section.
(2) No information acquired from a pen register or trap and trace device installed and used pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Disclosure for law enforcement purposes
No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(c) Notification of intended disclosure by United States
Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States against an aggrieved person any information obtained or derived from the use of a pen register or trap and trace device pursuant to this subchapter, the United States shall, before the trial, hearing, or the other proceeding or at a reasonable time before an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.
(d) Notification of intended disclosure by State or political subdivision
Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the State or political subdivision thereof against an aggrieved person any information obtained or derived from the use of a pen register or trap and trace device pursuant to this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(e) Motion to suppress
(1) Any aggrieved person against whom evidence obtained or derived from the use of a pen register or trap and trace device is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, or a State or political subdivision thereof, may move to suppress the evidence obtained or derived from the use of the pen register or trap and trace device, as the case may be, on the grounds that—
(A) the information was unlawfully acquired; or
(B) the use of the pen register or trap and trace device, as the case may be, was not made in conformity with an order of authorization or approval under this subchapter.
(2) A motion under paragraph (1) shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the aggrieved person concerned was not aware of the grounds of the motion.
(f) In camera and ex parte review
(1) Whenever a court or other authority is notified pursuant to subsection (c) or (d), whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to the use of a pen register or trap and trace device authorized by this subchapter or to discover, obtain, or suppress evidence or information obtained or derived from the use of a pen register or trap and trace device authorized by this subchapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other provision of law and if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the use of the pen register or trap and trace device, as the case may be, as may be necessary to determine whether the use of the pen register or trap and trace device, as the case may be, was lawfully authorized and conducted.
(2) In making a determination under paragraph (1), the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the use of the pen register or trap and trace device, as the case may be, or may require the Attorney General to provide to the aggrieved person a summary of such materials, only where such disclosure is necessary to make an accurate determination of the legality of the use of the pen register or trap and trace device, as the case may be.
(g) Effect of determination of lawfulness
(1) If the United States district court determines pursuant to subsection (f) that the use of a pen register or trap and trace device was not lawfully authorized or conducted, the court may, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the use of the pen register or trap and trace device, as the case may be, or otherwise grant the motion of the aggrieved person.
(2) If the court determines that the use of the pen register or trap and trace device, as the case may be, was lawfully authorized or conducted, it may deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(h) Binding final orders
Orders granting motions or requests under subsection (g), decisions under this section that the use of a pen register or trap and trace device was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to the installation and use of a pen register or trap and trace device shall be final orders and binding upon all courts of the United States and the several States except a United States Court of Appeals or the Supreme Court.
(
§1846. Congressional oversight
(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all uses of pen registers and trap and trace devices pursuant to this subchapter.
(b) On a semiannual basis, the Attorney General shall also provide to the committees referred to in subsection (a) a report setting forth with respect to the preceding 6-month period—
(1) the total number of applications made for orders approving the use of pen registers or trap and trace devices under this subchapter;
(2) the total number of such orders either granted, modified, or denied;
(3) the total number of pen registers and trap and trace devices whose installation and use was authorized by the Attorney General on an emergency basis under
(4) each department or agency on behalf of which the Attorney General or a designated attorney for the Government has made an application for an order authorizing or approving the installation and use of a pen register or trap and trace device under this subchapter;
(5) for each department or agency described in paragraph (4), each number described in paragraphs (1), (2), and (3); and
(6) a good faith estimate of the total number of subjects who were targeted by the installation and use of a pen register or trap and trace device under an order or emergency authorization issued under this subchapter, rounded to the nearest 500, including—
(A) the number of such subjects who are United States persons, reported to the nearest band of 500, starting with 0–499; and
(B) of the number of United States persons described in subparagraph (A), the number of persons whose information acquired pursuant to such order was reviewed or accessed by a Federal officer, employee, or agent, reported to the nearest band of 500, starting with 0–499.
(c) Each report under subsection (b) shall be submitted in unclassified form, to the extent consistent with national security. Not later than 7 days after the date on which the Attorney General submits such a report, the Attorney General shall make the report publicly available, or, if the Attorney General determines that the report cannot be made publicly available consistent with national security, the Attorney General may make publicly available an unclassified summary of the report or a redacted version of the report.
(
Amendments
2018—Subsec. (b).
Subsec. (b)(6).
Subsec. (c).
2015—Subsec. (b)(4), (5).
2006—Subsec. (a).
Subsec. (b)(3).
SUBCHAPTER IV—ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES
§1861. Access to certain business records for foreign intelligence and international terrorism investigations
(a) Application for order; conduct of investigation generally
(1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
(2) An investigation conducted under this section shall—
(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(3) In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). The Deputy Director or the Executive Assistant Director may not further delegate such authority.
(b) Recipient and contents of application
Each application under this section—
(1) shall be made to—
(A) a judge of the court established by
(B) a United States Magistrate Judge under
(2) shall include—
(A) a specific selection term to be used as the basis for the production of the tangible things sought;
(B) in the case of an application other than an application described in subparagraph (C) (including an application for the production of call detail records other than in the manner described in subparagraph (C)), a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—
(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation;
(C) in the case of an application for the production on an ongoing basis of call detail records created before, on, or after the date of the application relating to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to protect against international terrorism, a statement of facts showing that—
(i) there are reasonable grounds to believe that the call detail records sought to be produced based on the specific selection term required under subparagraph (A) are relevant to such investigation; and
(ii) there is a reasonable, articulable suspicion that such specific selection term is associated with a foreign power engaged in international terrorism or activities in preparation therefor, or an agent of a foreign power engaged in international terrorism or activities in preparation therefor; and
(D) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.
(c) Ex parte judicial order of approval
(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b) and that the minimization procedures submitted in accordance with subsection (b)(2)(D) meet the definition of minimization procedures under subsection (g), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.
(2) An order under this subsection—
(A) shall describe the tangible things that are ordered to be produced with sufficient particularity to permit them to be fairly identified, including each specific selection term to be used as the basis for the production;
(B) shall include the date on which the tangible things must be provided, which shall allow a reasonable period of time within which the tangible things can be assembled and made available;
(C) shall provide clear and conspicuous notice of the principles and procedures described in subsection (d);
(D) may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things;
(E) shall not disclose that such order is issued for purposes of an investigation described in subsection (a); and
(F) in the case of an application described in subsection (b)(2)(C), shall—
(i) authorize the production on a daily basis of call detail records for a period not to exceed 180 days;
(ii) provide that an order for such production may be extended upon application under subsection (b) and the judicial finding under paragraph (1) of this subsection;
(iii) provide that the Government may require the prompt production of a first set of call detail records using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii);
(iv) provide that the Government may require the prompt production of a second set of call detail records using session-identifying information or a telephone calling card number identified by the specific selection term used to produce call detail records under clause (iii);
(v) provide that, when produced, such records be in a form that will be useful to the Government;
(vi) direct each person the Government directs to produce call detail records under the order to furnish the Government forthwith all information, facilities, or technical assistance necessary to accomplish the production in such a manner as will protect the secrecy of the production and produce a minimum of interference with the services that such person is providing to each subject of the production; and
(vii) direct the Government to—
(I) adopt minimization procedures that require the prompt destruction of all call detail records produced under the order that the Government determines are not foreign intelligence information; and
(II) destroy all call detail records produced under the order as prescribed by such procedures.
(3) No order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term that meets the requirements of subsection (b)(2).
(4) A denial of the application made under this subsection may be reviewed as provided in
(d) Nondisclosure
(1) No person shall disclose to any other person that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order issued or an emergency production required under this section, other than to—
(A) those persons to whom disclosure is necessary to comply with such order or such emergency production;
(B) an attorney to obtain legal advice or assistance with respect to the production of things in response to the order or the emergency production; or
(C) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.
(2)(A) A person to whom disclosure is made pursuant to paragraph (1) shall be subject to the nondisclosure requirements applicable to a person to whom an order or emergency production is directed under this section in the same manner as such person.
(B) Any person who discloses to a person described in subparagraph (A), (B), or (C) of paragraph (1) that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order or emergency production under this section shall notify such person of the nondisclosure requirements of this subsection.
(C) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under subparagraph (A) or (C) of paragraph (1) shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.
(e) Liability for good faith disclosure; waiver
(1) No cause of action shall lie in any court against a person who—
(A) produces tangible things or provides information, facilities, or technical assistance in accordance with an order issued or an emergency production required under this section; or
(B) otherwise provides technical assistance to the Government under this section or to implement the amendments made to this section by the USA FREEDOM Act of 2015.
(2) A production or provision of information, facilities, or technical assistance described in paragraph (1) shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.
(f) Judicial review of FISA orders
(1) In this subsection—
(A) the term "production order" means an order to produce any tangible thing under this section; and
(B) the term "nondisclosure order" means an order imposed under subsection (d).
(2)(A)(i) A person receiving a production order may challenge the legality of the production order or any nondisclosure order imposed in connection with the production order by filing a petition with the pool established by
(ii) The presiding judge shall immediately assign a petition under clause (i) to 1 of the judges serving in the pool established by
(iii) The assigned judge shall promptly provide a written statement for the record of the reasons for any determination under this subsection. Upon the request of the Government, any order setting aside a nondisclosure order shall be stayed pending review pursuant to paragraph (3).
(B) A judge considering a petition to modify or set aside a production order may grant such petition only if the judge finds that such order does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the production order, the judge shall immediately affirm such order, and order the recipient to comply therewith.
(C)(i) A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.
(ii) If the judge denies a petition to modify or set aside a nondisclosure order, the recipient of such order shall be precluded for a period of 1 year from filing another such petition with respect to such nondisclosure order.
(D) Any production or nondisclosure order not explicitly modified or set aside consistent with this subsection shall remain in full effect.
(3) A petition for review of a decision under paragraph (2) to affirm, modify, or set aside an order by the Government or any person receiving such order shall be made to the court of review established under
(4) Judicial proceedings under this subsection shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.
(5) All petitions under this subsection shall be filed under seal. In any proceedings under this subsection, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions thereof, which may include classified information.
(g) Minimization procedures
(1) In general
The Attorney General shall adopt, and update as appropriate, specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this subchapter.
(2) Defined
In this section, the term "minimization procedures" means—
(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.
(3) Rule of construction
Nothing in this subsection shall limit the authority of the court established under
(h) Use of information
Information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures adopted pursuant to subsection (g). No otherwise privileged information acquired from tangible things received by the Federal Bureau of Investigation in accordance with the provisions of this subchapter shall lose its privileged character. No information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(i) Emergency authority for production of tangible things
(1) Notwithstanding any other provision of this section, the Attorney General may require the emergency production of tangible things if the Attorney General—
(A) reasonably determines that an emergency situation requires the production of tangible things before an order authorizing such production can with due diligence be obtained;
(B) reasonably determines that the factual basis for the issuance of an order under this section to approve such production of tangible things exists;
(C) informs, either personally or through a designee, a judge having jurisdiction under this section at the time the Attorney General requires the emergency production of tangible things that the decision has been made to employ the authority under this subsection; and
(D) makes an application in accordance with this section to a judge having jurisdiction under this section as soon as practicable, but not later than 7 days after the Attorney General requires the emergency production of tangible things under this subsection.
(2) If the Attorney General requires the emergency production of tangible things under paragraph (1), the Attorney General shall require that the minimization procedures required by this section for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving the production of tangible things under this subsection, the production shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time the Attorney General begins requiring the emergency production of such tangible things, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in
(5) If such application for approval is denied, or in any other case where the production of tangible things is terminated and no order is issued approving the production, no information obtained or evidence derived from such production shall be received in evidence or otherwise disclosed in any trial, hearing, or other 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 thereof, and no information concerning any United States person acquired from such production shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(j) Compensation
The Government shall compensate a person for reasonable expenses incurred for—
(1) producing tangible things or providing information, facilities, or assistance in accordance with an order issued with respect to an application described in subsection (b)(2)(C) or an emergency production under subsection (i) that, to comply with subsection (i)(1)(D), requires an application described in subsection (b)(2)(C); or
(2) otherwise providing technical assistance to the Government under this section or to implement the amendments made to this section by the USA FREEDOM Act of 2015.
(k) Definitions
In this section:
(1) In general
The terms "foreign power", "agent of a foreign power", "international terrorism", "foreign intelligence information", "Attorney General", "United States person", "United States", "person", and "State" have the meanings provided those terms in
(2) Address
The term "address" means a physical address or electronic address, such as an electronic mail address or temporarily assigned network address (including an Internet protocol address).
(3) Call detail record
The term "call detail record"—
(A) means 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; and
(B) does not include—
(i) the contents (as defined in
(ii) the name, address, or financial information of a subscriber or customer; or
(iii) cell site location or global positioning system information.
(4) Specific selection term
(A) Tangible things
(i) In general
Except as provided in subparagraph (B), a "specific selection term"—
(I) is a term that specifically identifies a person, account, address, or personal device, or any other specific identifier; and
(II) is used to limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things.
(ii) Limitation
A specific selection term under clause (i) does not include an identifier that does not limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things, such as an identifier that—
(I) identifies an electronic communication service provider (as that term is defined in
(II) identifies a broad geographic region, including the United States, a city, a county, a State, a zip code, or an area code, when not used as part of a specific identifier as described in clause (i).
(iii) Rule of construction
Nothing in this paragraph shall be construed to preclude the use of multiple terms or identifiers to meet the requirements of clause (i).
(B) Call detail record applications
For purposes of an application submitted under subsection (b)(2)(C), the term "specific selection term" means a term that specifically identifies an individual, account, or personal device.
(
Amendment of Section
§1861. Definitions
As used in this subchapter:
(1) The terms "foreign power", "agent of a foreign power", "foreign intelligence information", "international terrorism", and "Attorney General" shall have the same meanings as in
(2) The term "common carrier" means any person or entity transporting people or property by land, rail, water, or air for compensation.
(3) The term "physical storage facility" means any business or entity that provides space for the storage of goods or materials, or services related to the storage of goods or materials, to the public or any segment thereof.
(4) The term "public accommodation facility" means any inn, hotel, motel, or other establishment that provides lodging to transient guests.
(5) The term "vehicle rental facility" means any person or entity that provides vehicles for rent, lease, loan, or other similar use to the public or any segment thereof.
See 2006, 2009, 2010, 2011, 2015, and 2019 Amendment notes below.
[Amendment made by
References in Text
Executive Order No. 12333, referred to in subsec. (a)(2)(A), is set out as a note under
The USA FREEDOM Act of 2015, referred to in subsecs. (e)(1)(B) and (j)(2), also known as the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, is
Codification
Pursuant to
Prior Provisions
A prior section 1861,
Amendments
2019—
2018—Subsec. (c)(4).
2015—
Subsec. (b)(2)(A).
Subsec. (b)(2)(A)(iii).
Subsec. (b)(2)(B).
Subsec. (b)(2)(C).
Subsec. (b)(2)(D).
Subsec. (c)(1).
Subsec. (c)(2)(A).
Subsec. (c)(2)(F).
Subsec. (c)(3).
Subsec. (d)(1).
Subsec. (d)(1)(A).
Subsec. (d)(1)(B).
Subsec. (d)(2)(A).
Subsec. (d)(2)(B).
Subsec. (e).
Subsec. (f)(2)(A)(i).
Subsec. (f)(2)(C)(ii), (iii).
Subsec. (g)(1).
Subsec. (g)(3).
Subsec. (i).
Subsec. (j).
Subsec. (k).
2011—
2010—
2009—
2006—
Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (b)(2).
Subsec. (c).
"(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.
"(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a)."
Subsec. (d).
Subsec. (d)(2)(C).
Subsec. (f).
Subsecs. (g), (h).
2001—Subsec. (a)(1).
Effective Date of 2015 Amendment
Effective Date of 2006 Amendment
Amendment by section 102(b)(1) of
Construction of Pub. L. 114–23
§1862. Congressional oversight
(a) On an annual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate concerning all requests for the production of tangible things under
(b) In April of each year, the Attorney General shall submit to the House and Senate Committees on the Judiciary and the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence a report setting forth with respect to the preceding calendar year—
(1) a summary of all compliance reviews conducted by the Government for the production of tangible things under
(2) the total number of applications described in
(3) the total number of such orders either granted, modified, or denied;
(4) the total number of applications described in
(5) the total number of such orders either granted, modified, or denied;
(6) the total number of applications made for orders approving requests for the production of tangible things under
(7) the total number of such orders either granted, modified, or denied; and
(8) the number of such orders either granted, modified, or denied for the production of each of the following:
(A) Library circulation records, library patron lists, book sales records, or book customer lists.
(B) Firearms sales records.
(C) Tax return records.
(D) Educational records.
(E) Medical records containing information that would identify a person.
(c)(1) In April of each year, the Attorney General shall submit to Congress a report setting forth with respect to the preceding year—
(A) the total number of applications made for orders approving requests for the production of tangible things under
(B) the total number of such orders either granted, modified, or denied;
(C) the total number of applications made for orders approving requests for the production of tangible things under
(D) the total number of orders described in subparagraph (C) either granted, modified, or denied; and
(E) with respect to orders described in subparagraph (D) that have been granted or modified, whether the court established under
(2) Each report under this subsection shall be submitted in unclassified form.
(