50 USC 1805b - Additional procedure for authorizing certain acquisitions concerning persons located outside the United States

(a) Authorizing acquisition of foreign intelligence information concerning persons outside the United States; certification 
Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that
(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 1805c of this title;
(2) the acquisition does not constitute electronic surveillance;
(3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;

Advertisement
view counter
(4) a significant purpose of the acquisition is to obtain foreign intelligence information; and
(5) the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 1801 (h) of this title. This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions appointed by the President, by and with the consent of the Senate, or the Head of any Agency of the Intelligence Community, unless immediate action by the Government is required and time does not permit the preparation of a certification. In such a case, the determination of the Director of National Intelligence and the Attorney General shall be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made.
(b) Specifics required in certification 
A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.
(c) Transmittal of certification 
The Attorney General shall transmit as soon as practicable under seal to the court established under section 1803 (a) of this title a copy of a certification made under subsection (a). Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless the certification is necessary to determine the legality of the acquisition under this section.
(d) Compliance with acquisition procedures; reports 
An acquisition under this section may be conducted only in accordance with the certification of the Director of National Intelligence and the Attorney General, or their oral instructions if time does not permit the preparation of a certification, and the minimization procedures adopted by the Attorney General. The Director of National Intelligence and 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 section 1808 (a) of this title.
(e) Direction to provide information and maintain records 
With respect to an authorization of an acquisition under this section, the Director of National Intelligence and Attorney General may direct a person to
(1) immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition and produce a minimum of interference with the services that such person is providing to the target; and
(2) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such person wishes to maintain.
(f) Compensation for providing of information 
The Government shall compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to subsection (e).
(g) Failure to comply with directive 
In the case of a failure to comply with a directive issued pursuant to subsection (e), the Attorney General may invoke the aid of the court established under section 1803 (a) of this title to compel compliance with the directive. The court shall issue an order requiring the person to comply with the directive if it finds that the directive was issued in accordance with subsection (e) and is otherwise lawful. Failure to obey an order of the court may be punished by the court as contempt of court. Any process under this section may be served in any judicial district in which the person may be found.

Advertisement
view counter
(h) Challenging legality of directive 

(1) 
(A) A person receiving a directive issued pursuant to subsection (e) may challenge the legality of that directive by filing a petition with the pool established under section 1803 (e)(1)of this title.
(B) The presiding judge designated pursuant to section 1803 (b) of this title shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 1803 (e)(1) of this title. Not later than 48 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 1803 (e)(2) of this title and provide a written statement for the record of the reasons for any determination under this subsection.
(2) A judge considering a petition to modify or set aside a directive may grant such petition only if the judge finds that such directive does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the directive, the judge shall immediately affirm such directive, and order the recipient to comply with such directive.
(3) Any directive not explicitly modified or set aside under this subsection shall remain in full effect.
(i) Court review 
The Government or a person receiving a directive reviewed pursuant to subsection (h) may file a petition with the Court of Review established under section 1803 (b) of this title for review of the decision issued pursuant to subsection (h) not later than 7 days after the issuance of such decision. Such court of review shall have jurisdiction to consider such petitions and shall provide for the record a written statement of the reasons for its decision. On petition for a writ of certiorari by the Government or any person receiving such directive, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
(j) Expeditious completion of review; records 
Judicial proceedings under this section 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.
(k) Sealing of petitions 
All petitions under this section shall be filed under seal. In any proceedings under this section, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information.
(l) Causes of action 
Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section.
(m) Retention of directive 
A directive made or an order granted under this section shall be retained for a period of not less than 10 years from the date on which such directive or such order is made.