FISA Amendments Reauthorization Act of 2017

FISA Amendments Reauthorization Act of 2017

TITLE I--ENHANCEMENTS TO FOREIGN INTELLIGENCE COLLECTION AND SAFEGUARDS, ACCOUNTABILITY, AND OVERSIGHT

(Sec. 101) This bill directs the Department of Justice (DOJ) to adopt querying procedures consistent with the requirements of the Fourth Amendment to the Constitution for information collected pursuant to an authorization under the Foreign Intelligence Surveillance Act (FISA) provisions for targeting non-U.S. persons outside the United States. Such procedures shall include a technical procedure whereby a record is kept of each U.S. person query term used for a query. The querying procedures shall be subject to judicial review.

A court order is generally required for review by the Federal Bureau of Investigation (FBI) of query results in criminal investigations unrelated to national security, except where the FBI determines there is a reasonable belief that such contents could assist in mitigating or eliminating a threat to life or serious bodily harm.

(Sec. 102) Any information concerning a U.S. person acquired under querying provisions may not be used in evidence against that person in any criminal proceeding unless the FBI obtained an order of the FISA Court to access such information or DOJ determines that the criminal proceeding: (1) affects, involves, or is related to U.S. national security, or (2) involves death, kidnapping, serious bodily injury, conduct that constitutes a criminal offense that is a specified offense against a minor, incapacitation or destruction of critical infrastructure, cybersecurity, transnational crime, or human trafficking. Such determination is not subject to judicial review.

Reporting by the Office of the Director of National Intelligence (ODNI) is expanded.

(Sec. 103) If DOJ and the ODNI intend to implement the authorization of the intentional acquisition of abouts communications, they shall first submit to specified congressional committees a written notice of intent to do so. "Abouts communication" means a communication that contains a reference to, but is not to or from, a target of an acquisition authorized under the FISA.

Such committees shall hold hearings and briefings and otherwise obtain information in order to fully review the written notice. The bill makes an exception for emergency acquisition of abouts communication.

Each element of the intelligence community involved in the acquisition of abouts communications shall fully and currently inform the committees of a material breach.

(Sec. 104) The ODNI shall: (1) conduct a declassification review of any minimization procedures adopted or amended; and (2) consistent with such review, make such minimization procedures publicly available to the greatest extent practicable.

(Sec. 105) If DOJ authorized the emergency employment of electronic surveillance or a physical search, DOJ may authorize, for the effective period of the emergency authorization and subsequent order, without a separate order, the targeting of a U.S. person subject to such emergency employment for the purpose of acquiring foreign intelligence information while such U.S. person is reasonably believed to be located outside the United States.

(Sec. 106) The bill provides for compensation of an amicus curiae (i.e., friend of the court who is not a party to a case and who assists the court by offering information, expertise, or insight that has a bearing on the issues in the case).

(Sec. 107) The bill expands FISA reporting requirements to require reporting of: (1) the total number of persons subject to electronic surveillance conducted under an order or emergency authorization, including the number of such individuals who are U.S. persons; and (2) 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.

(Sec. 108) The Privacy and Civil Liberties Oversight Board may meet or otherwise communicate in any number to confer or deliberate in a manner that is closed to the public.

If the position of chairman of the board is vacant, the board, at the direction of the unanimous vote of the serving member of the board, may exercise the authority of the chairman.

(Sec. 109) The National Security Agency and the FBI shall each designate at least one senior officer to serve as the principal advisor to carry out specified privacy and civil liberties-related functions.

(Sec. 110) The bill extends whistle-blower protections to contractor employees of the intelligence community and the FBI.

(Sec. 111) DOJ shall brief specified congressional committees on how it interprets FISA requirements to notify an aggrieved person of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device.

(Sec. 112) The Inspector General of DOJ shall report to specified congressional committees on queries conducted by the FBI.

TITLE II--EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND OTHER MATTERS

(Sec. 201) The bill reauthorizes title VII of the FISA until December 31, 2023.

(Sec. 202) The penalty for the unauthorized removal and retention of classified documents or material is increased from one to five years.

(Sec. 203) DOJ must report to specified congressional committees on current and future challenges to the effectiveness of U.S. foreign intelligence surveillance activities authorized under the FISA.

(Sec. 204) The Government Accountability Office shall study the U.S. classification system and the methods by which the intelligence community protects classified information.

(Sec. 205) The bill makes technical amendments to the FISA and authorizes referral of the denial of certain applications to a court of review.