[USC02] 50 USC CHAPTER 36, SUBCHAPTER IV: ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES

50 USC CHAPTER 36, SUBCHAPTER IV: ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES

From Title 50—WAR AND NATIONAL DEFENSECHAPTER 36—FOREIGN INTELLIGENCE SURVEILLANCE

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 section 1803(a) of this title; or

(B) a United States Magistrate Judge under chapter 43 of title 28, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

(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;

(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 section 1803 of this title.

(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

(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 section 1803(e)(1) of this title.

(ii) The presiding judge shall immediately assign a petition under clause (i) to 1 of the judges serving in the pool established by section 1803(e)(1) of this title. Not later than 72 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the petition. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the production order or nondisclosure order. If the assigned judge determines the petition is not frivolous, the assigned judge shall promptly consider the petition in accordance with the procedures established under section 1803(e)(2) of this title.

(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 section 1803(b) of this title, which shall have jurisdiction to consider such petitions. The court of review shall provide for the record a written statement of the reasons for its decision and, on petition by the Government or any person receiving such order for writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(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 section 1801(e)(1) of this title, 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; and

(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 section 1803(a) of this title to impose additional, particularized minimization procedures with regard to the production, retention, or dissemination of nonpublicly available information concerning unconsenting United States persons, including additional, particularized procedures related to the destruction of information within a reasonable time period.

(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 section 1803 of this title.

(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 section 1801 of this title.

(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 section 2510(8) of title 18) of any communication;

(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 section 1881 of this title) or a provider of remote computing service (as that term is defined in section 2711 of title 18), when not used as part of a specific identifier as described in clause (i), unless the provider is itself a subject of an authorized investigation for which the specific selection term is used as the basis for the production; or

(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.

(Pub. L. 95–511, title V, §501, as added Pub. L. 107–56, title II, §215, Oct. 26, 2001, 115 Stat. 287; amended Pub. L. 107–108, title III, §314(a)(6), Dec. 28, 2001, 115 Stat. 1402; Pub. L. 109–177, title I, §§102(b)(1), 106(a)–(e), (f)(2), (g), Mar. 9, 2006, 120 Stat. 195–198; Pub. L. 109–178, §§3, 4(a), Mar. 9, 2006, 120 Stat. 278, 280; Pub. L. 111–118, div. B, §1004(a), Dec. 19, 2009, 123 Stat. 3470; Pub. L. 111–141, §1(a), Feb. 27, 2010, 124 Stat. 37; Pub. L. 112–3, §2(a), Feb. 25, 2011, 125 Stat. 5; Pub. L. 112–14, §2(a), May 26, 2011, 125 Stat. 216; Pub. L. 114–23, title I, §§101–107, title VII, §705(a), (c), June 2, 2015, 129 Stat. 269–273, 300; Pub. L. 115–118, title II, §205(b)(6), Jan. 19, 2018, 132 Stat. 22; Pub. L. 116–69, div. B, title VII, §1703(a), Nov. 21, 2019, 133 Stat. 1143.)

Amendment of Section

Pub. L. 109–177, title I, §102(b), Mar. 9, 2006, 120 Stat. 195, as amended by Pub. L. 111–118, div. B, §1004(a), Dec. 19, 2009, 123 Stat. 3470; Pub. L. 111–141, §1(a), Feb. 27, 2010, 124 Stat. 37; Pub. L. 112–3, §2(a), Feb. 25, 2011, 125 Stat. 5; Pub. L. 112–14, §2(a), May 26, 2011, 125 Stat. 216; Pub. L. 114–23, title VII, §705(a), (c), June 2, 2015, 129 Stat. 300; Pub. L. 116–69, div. B, title VII, §1703(a), Nov. 21, 2019, 133 Stat. 1143, provided that, effective Mar. 15, 2020, with certain exceptions, this section is amended to read as it read on Oct. 25, 2001:

§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 section 1801 of this title.

(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 Pub. L. 114–23 to section 102(b) of Pub. L. 109–177, delaying the reversion of this section from June 1, 2015, to Dec. 15, 2019, was given effect to reflect the probable intent of Congress, notwithstanding that Pub. L. 114–23 was enacted on June 2, 2015.]

References in Text

Executive Order No. 12333, referred to in subsec. (a)(2)(A), is set out as a note under section 3001 of this title.

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 Pub. L. 114–23, June 2, 2015, 129 Stat. 268. For complete classification of this Act to the Code, see Short Title of 2015 Amendment note set out under section 1801 of this title and Tables.

Codification

Pursuant to Pub. L. 109–177, §102(b)(1), as amended by Pub. L. 112–14, this section was amended, effective June 1, 2015, to read as it read on Oct. 25, 2001. The amendments made by Pub. L. 114–23, which was enacted June 2, 2015, were directed to this section as it read prior to such reversion and were executed as if the reversion had not taken place, to reflect the probable intent of Congress and the extension of the provisions of this section to Dec. 15, 2019, by Pub. L. 114–23, §705(a), (c). See 2015 Amendment notes below.

Prior Provisions

A prior section 1861, Pub. L. 95–511, title V, §501, as added Pub. L. 105–272, title VI, §602, Oct. 20, 1998, 112 Stat. 2410, defined terms used in this subchapter, prior to repeal by Pub. L. 107–56, title II, §215, Oct. 26, 2001, 115 Stat. 287. See Amendment of Section note above.

Amendments

2019—Pub. L. 116–69 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

2018—Subsec. (c)(4). Pub. L. 115–118 added par. (4).

2015—Pub. L. 114–23, §705(a), (c), amended directory language of Pub. L. 109–177, §102(b)(1). See Codification note above and 2006 Amendment note below.

Subsec. (b)(2)(A). Pub. L. 114–23, §103(a), added subpar. (A). Former subpar. (A) redesignated (B).

Pub. L. 114–23, §101(a)(1)(A), substituted "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" for "a statement" in introductory provisions.

Subsec. (b)(2)(A)(iii). Pub. L. 114–23, §101(a)(1)(B), struck out "and" at end.

Subsec. (b)(2)(B). Pub. L. 114–23, §101(a)(2), redesignated subpar. (A) as (B). Former subpar. (B) redesignated (D).

Subsec. (b)(2)(C). Pub. L. 114–23, §101(a)(3), added subpar. (C).

Subsec. (b)(2)(D). Pub. L. 114–23, §101(a)(2), redesignated subpar. (B) as (D).

Subsec. (c)(1). Pub. L. 114–23, §104(a)(1), inserted "and that the minimization procedures submitted in accordance with subsection (b)(2)(D) meet the definition of minimization procedures under subsection (g)" after "subsections (a) and (b)".

Subsec. (c)(2)(A). Pub. L. 114–23, §103(b)(1), inserted before semicolon at end ", including each specific selection term to be used as the basis for the production".

Subsec. (c)(2)(F). Pub. L. 114–23, §101(b), added subpar. (F).

Subsec. (c)(3). Pub. L. 114–23, §103(b)(2), added par. (3).

Subsec. (d)(1). Pub. L. 114–23, §102(b)(1)(A), substituted "pursuant to an order issued or an emergency production required" for "pursuant to an order" in introductory provisions.

Subsec. (d)(1)(A). Pub. L. 114–23, §102(b)(1)(B), substituted "such order or such emergency production" for "such order".

Subsec. (d)(1)(B). Pub. L. 114–23, §102(b)(1)(C), substituted "the order or the emergency production" for "the order".

Subsec. (d)(2)(A). Pub. L. 114–23, §102(b)(2)(A), substituted "an order or emergency production" for "an order".

Subsec. (d)(2)(B). Pub. L. 114–23, §102(b)(2)(B), substituted "an order or emergency production" for "an order".

Subsec. (e). Pub. L. 114–23, §105, amended subsec. (e) generally. Prior to amendment, text read as follows: "A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context."

Subsec. (f)(2)(A)(i). Pub. L. 114–23, §104(b)(1), substituted "the production order or any nondisclosure order imposed in connection with the production order" for "that order" and struck out at end "Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (C), with the pool established by section 1803(e)(1) of this title."

Subsec. (f)(2)(C)(ii), (iii). Pub. L. 114–23, §104(b)(2), redesignated cl. (iii) as (ii) and struck out former cl. (ii) which read as follows: "If, upon filing of such a petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive, unless the judge finds that the certification was made in bad faith."

Subsec. (g)(1). Pub. L. 114–23, §104(a)(3), substituted "The" for "Not later than 180 days after March 9, 2006, the" and inserted ", and update as appropriate," after "adopt".

Subsec. (g)(3). Pub. L. 114–23, §104(a)(2), added par. (3).

Subsec. (i). Pub. L. 114–23, §102(a), which directed adding subsec. (i) at the end of this section, effective after the addition of subsecs. (j) and (k), was executed by adding subsec. (i) after subsec. (h) to reflect the probable intent of Congress.

Subsec. (j). Pub. L. 114–23, §106, added subsec. (j).

Subsec. (k). Pub. L. 114–23, §107, added subsec. (k).

2011—Pub. L. 112–14 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

Pub. L. 112–3 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

2010—Pub. L. 111–141 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

2009—Pub. L. 111–118 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

2006—Pub. L. 109–177, §102(b)(1), as amended by Pub. L. 111–118, Pub. L. 111–141, Pub. L. 112–3, Pub. L. 112–14, Pub. L. 114–23, §705(a), (c), and Pub. L. 116–69, amended section effective Mar. 15, 2020, so as to read as it read on Oct. 25, 2001. Prior to amendment, section related to access to certain business records for foreign intelligence and international terrorism investigations.

Subsec. (a)(1). Pub. L. 109–177, §106(a)(1), substituted "Subject to paragraph (3), the Director" for "The Director".

Subsec. (a)(3). Pub. L. 109–177, §106(a)(2), added par. (3).

Subsec. (b)(2). Pub. L. 109–177, §106(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "shall specify that the records concerned are sought for an authorized investigation 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."

Subsec. (c). Pub. L. 109–177, §106(c), (d), amended subsec. (c) generally. Prior to amendment, text read as follows:

"(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). Pub. L. 109–177, §106(e), amended subsec. (d) generally. Prior to amendment, text read as follows: "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section."

Subsec. (d)(2)(C). Pub. L. 109–178, §4(a), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: "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 this section 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, but in no circumstance shall a person be required to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance."

Subsec. (f). Pub. L. 109–178, §3, amended subsec. (f) generally. Prior to amendment, subsec. (f) provided for judicial proceedings relating to challenging an order to produce tangible things.

Pub. L. 109–177, §106(f)(2), added subsec. (f).

Subsecs. (g), (h). Pub. L. 109–177, §106(g), added subsecs. (g) and (h).

2001—Subsec. (a)(1). Pub. L. 107–108 inserted "to obtain foreign intelligence information not concerning a United States person or" after "an investigation".

Effective Date of 2015 Amendment

Pub. L. 114–23, title I, §109(a), June 2, 2015, 129 Stat. 276, provided that: "The amendments made by sections 101 through 103 [amending this section] shall take effect on the date that is 180 days after the date of the enactment of this Act [June 2, 2015]."

Effective Date of 2006 Amendment

Amendment by section 102(b)(1) of Pub. L. 109–177 effective Mar. 15, 2020, except that former provisions to continue in effect with respect to any particular foreign intelligence investigation that began before Mar. 15, 2020, or with respect to any particular offense or potential offense that began or occurred before Mar. 15, 2020, see section 102(b) of Pub. L. 109–177, set out as a note under section 1805 of this title.

Construction of Pub. L. 114–23

Pub. L. 114–23, title I, §109(b), June 2, 2015, 129 Stat. 276, provided that: "Nothing in this Act [see Tables for classification] shall be construed to alter or eliminate the authority of the Government to obtain an order under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) as in effect prior to the effective date described in subsection (a) [see Effective Date of 2015 Amendment note above] during the period ending on such effective date."

Pub. L. 114–23, title I, §110, June 2, 2015, 129 Stat. 276, provided that: "Nothing in this Act [see Tables for classification] shall be construed to authorize the production of the contents (as such term is defined in section 2510(8) of title 18, United States Code) of any electronic communication from an electronic communication service provider (as such term is defined in section 701(b)(4) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881(b)(4))) under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.)."

§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 section 1861 of this title.

(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 section 1861 of this title;

(2) the total number of applications described in section 1861(b)(2)(B) of this title made for orders approving requests for the production of tangible things;

(3) the total number of such orders either granted, modified, or denied;

(4) the total number of applications described in section 1861(b)(2)(C) of this title made for orders approving requests for the production of call detail records;

(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 section 1861 of this title;

(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.

(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 section 1861 of this title;

(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 section 1861 of this title in which the specific selection term does not specifically identify an individual, account, or personal device;

(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 section 1803 of this title has directed additional, particularized minimization procedures beyond those adopted pursuant to section 1861(g) of this title.

(2) Each report under this subsection shall be submitted in unclassified form.

(Pub. L. 95–511, title V, §502, as added Pub. L. 107–56, title II, §215, Oct. 26, 2001, 115 Stat. 288; amended Pub. L. 107–108, title III, §314(a)(7), Dec. 28, 2001, 115 Stat. 1402; Pub. L. 109–177, title I, §§102(b)(1), 106(h), Mar. 9, 2006, 120 Stat. 195, 199; Pub. L. 111–118, div. B, §1004(a), Dec. 19, 2009, 123 Stat. 3470; Pub. L. 111–141, §1(a), Feb. 27, 2010, 124 Stat. 37; Pub. L. 111–259, title VIII, §801(6), Oct. 7, 2010, 124 Stat. 2746; Pub. L. 112–3, §2(a), Feb. 25, 2011, 125 Stat. 5; Pub. L. 112–14, §2(a), May 26, 2011, 125 Stat. 216; Pub. L. 114–23, title VI, §§601, 605(d), title VII, §705(a), (c), June 2, 2015, 129 Stat. 291, 298, 300; Pub. L. 116–69, div. B, title VII, §1703(a), Nov. 21, 2019, 133 Stat. 1143.)

Amendment of Section

§1862. Access to certain business records for foreign intelligence and international terrorism investigations

(a) Application for authorization

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 authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records in its possession for an investigation to gather foreign intelligence information or an investigation concerning international terrorism which investigation 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.

(b) Recipient and contents of application

Each application under this section—

(1) shall be made to—

(A) a judge of the court established by section 1803(a) of this title; or

(B) a United States Magistrate Judge under chapter 43 of title 28 who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the release of records under this section on behalf of a judge of that court; and

(2) shall specify that—

(A) the records concerned are sought for an investigation described in subsection (a); and

(B) there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.

(c) Ex parte judicial order of approval

(1) Upon 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 satisfies 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).

(d) Compliance; nondisclosure

(1) Any common carrier, public accommodation facility, physical storage facility, or vehicle rental facility shall comply with an order under subsection (c).

(2) No common carrier, public accommodation facility, physical storage facility, or vehicle rental facility, or officer, employee, or agent thereof, shall disclose to any person (other than those officers, agents, or employees of such common carrier, public accommodation facility, physical storage facility, or vehicle rental facility necessary to fulfill the requirement to disclose information to the Federal Bureau of Investigation under this section) that the Federal Bureau of Investigation has sought or obtained records pursuant to an order under this section.

See 2006, 2009, 2010, 2011, 2015, and 2019 Amendment notes below.

Codification

Prior Provisions

A prior section 1862, Pub. L. 95–511, title V, §502, as added Pub. L. 105–272, title VI, §602, Oct. 20, 1998, 112 Stat. 2411, which related to access to certain business records for foreign intelligence and international terrorism investigations, was repealed by Pub. L. 107–56, title II, §215, Oct. 26, 2001, 115 Stat. 287. See section 1861 of this title and see Amendment of Section note above.

Amendments

2019—Pub. L. 116–69 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

2015—Pub. L. 114–23, §705(a), (c), amended directory language of Pub. L. 109–177, §102(b)(1). See Codification note above and 2006 Amendment note below.

Subsec. (a). Pub. L. 114–23, §605(d), substituted "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" for "Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate".

Subsec. (b). Pub. L. 114–23, §601(a), added pars. (1) to (5) and redesignated former pars. (1) to (3) as (6) to (8), respectively.

Subsec. (c)(1)(C) to (E). Pub. L. 114–23, §601(b), added subpars. (C) to (E).

2011—Pub. L. 112–14 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

Pub. L. 112–3 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

2010—Pub. L. 111–141 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

Subsec. (a). Pub. L. 111–259 substituted "an annual" for "a annual".

2009—Pub. L. 111–118 amended directory language of Pub. L. 109–177, §102(b)(1). See 2006 Amendment note below.

2006—Pub. L. 109–177, §102(b)(1), as amended by Pub. L. 111–118, Pub. L. 111–141, Pub. L. 112–3, Pub. L. 112–14, Pub. L. 114–23, §705(a), (c), and Pub. L. 116–69, amended section effective Mar. 15, 2020, so as to read as it read on Oct. 25, 2001. Prior to amendment, section related to reports to Congressional committees concerning requests for the production of tangible things under section 1861 of this title.

Subsec. (a). Pub. L. 109–177, §106(h)(1), substituted "annual basis" for "semiannual basis" and inserted "and the Committee on the Judiciary" after "and the Select Committee on Intelligence".

Subsec. (b). Pub. L. 109–177, §106(h)(2)(A), in introductory provisions, substituted "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" for "On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period".

Subsec. (b)(3). Pub. L. 109–177, §106(h)(2)(B)–(D), added par. (3).

Subsec. (c). Pub. L. 109–177, §106(h)(3), added subsec. (c).

2001—Subsecs. (a), (b)(1). Pub. L. 107–108 substituted "section 1861 of this title" for "section 1842 of this title".

Effective Date of 2006 Amendment

§1863. Repealed. Pub. L. 107–56, title II, §215, Oct. 26, 2001, 115 Stat. 287

Section, Pub. L. 95–511, title V, §503, as added Pub. L. 105–272, title VI, §602, Oct. 20, 1998, 112 Stat. 2412, related to congressional oversight. See section 1862 of this title.

Revival of Section

§1863. 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 concerning all requests for records under this subchapter.

(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period—

(1) the total number of applications made for orders approving requests for records under this subchapter; and

(2) the total number of such orders either granted, modified, or denied.

Effective Date of Revival

Revival of section by section 102(b)(1) of Pub. L. 109–177 effective Mar. 15, 2020, except that former provisions to continue in effect with respect to any particular foreign intelligence investigation that began before Mar. 15, 2020, or with respect to any particular offense or potential offense that began or occurred before Mar. 15, 2020, see section 102(b) of Pub. L. 109–177, set out as an Effective Date of 2006 Amendment note under section 1805 of this title.

§1864. Notification of changes to retention of call detail record policies

(a) Requirement to retain

(1) In general

Not later than 15 days after learning that an electronic communication service provider that generates call detail records in the ordinary course of business has changed the policy of the provider on the retention of such call detail records to result in a retention period of less than 18 months, the Director of National Intelligence shall notify, in writing, the congressional intelligence committees of such change.

(2) Report

Not later than 30 days after December 18, 2015, the Director shall submit to the congressional intelligence committees a report identifying each electronic communication service provider that has, as of the date of the report, a policy to retain call detail records for a period of 18 months or less.

(b) Definitions

In this section:

(1) Call detail record

The term "call detail record" has the meaning given that term in section 1861(k) of this title.

(2) Electronic communication service provider

The term "electronic communication service provider" has the meaning given that term in section 1881(b)(4) of this title.

(Pub. L. 114–113, div. M, title III, §307, Dec. 18, 2015, 129 Stat. 2916.)

Codification

Section was enacted as part of the Intelligence Authorization Act for Fiscal Year 2016, and also as part of the Consolidated Appropriations Act, 2016, and not as part of the Foreign Intelligence Surveillance Act of 1978 which comprises this chapter.

Definitions

For definition of "congressional intelligence committees" as used in this section, see section 2 of div. M of Pub. L. 114–113, set out as a note under section 3003 of this title.