50 U.S.C. § 1881c — Other acquisitions targeting United

Page 303 TITLE 50—WAR AND NATIONAL DEFENSE § 1881c 95–511, Oct. 25, 1978, 92 Stat. 1783, known as the Foreign Intelligence Surveillance Act of 1978, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. AMENDMENTS 2024—Subsec. (b)(1)(C). Pub. L. 118–49, § 6(a)(3), sub- stituted ‘‘a sworn statement of’’ for ‘‘a statement of’’ in introductory provisions. Subsec. (b)(1)(K). Pub. L. 118–49, § 10(a)(5)(A), added subpar. (K). Subsec. (b)(1)(L). Pub. L. 118–49, § 10(b)(5)(A), added subpar. (L). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2024 AMENDMENT Amendment by section 6(a)(3) of Pub. L. 118–49 appli- cable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 6(a)(5) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(a)(5)(A) of Pub. L. 118–49 applicable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(a)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(b)(5)(A) of Pub. L. 118–49 applicable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(b)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. EFFECTIVE DATE OF REPEAL Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, ex- cept as provided in section 404 of Pub. L. 110–261, set out as a Transition Procedures note under section 1801 of this title, the repeals made by section 403(b)(1) are ef- fective two years after Apr. 20, 2024. § 1881c. Other acquisitions targeting United States persons outside the United States (a) Jurisdiction and scope (1) Jurisdiction The Foreign Intelligence Surveillance Court shall have jurisdiction to enter an order pur- suant to subsection (c). (2) Scope No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under cir- cumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the At- torney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this chapter. (3) Limitations (A) Moving or misidentified targets If a United States person targeted under this subsection is reasonably believed to be located in the United States during the ef- fective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States per- son is again reasonably believed to be lo- cated outside the United States during the effective period of such order. (B) Applicability If an acquisition for foreign intelligence purposes is to be conducted inside the United States and could be authorized under section 1881b of this title, the acquisition may only be conducted if authorized under section 1881b of this title or in accordance with another provision of this chapter other than this section. (C) Construction Nothing in this paragraph shall be con- strued to limit the authority of the Govern- ment to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other sub- chapter of this chapter. (b) Application Each application for an order under this sec- tion shall be made by a Federal officer in writ- ing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each appli- cation shall require the approval of the Attor- ney General based upon the Attorney General’s finding that it satisfies the criteria and require- ments of such application as set forth in this section and shall include— (1) the identity of the Federal officer making the application; (2) the identity, if known, or a description of the specific United States person who is the target of the acquisition; (3) a sworn statement of the facts and cir- cumstances relied upon to justify the appli- cant’s belief that the United States person who is the target of the acquisition is— (A) a person reasonably believed to be lo- cated outside the United States; and (B) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power; (4) a statement of proposed minimization procedures that meet the definition of mini- mization procedures under section 1801(h) or 1821(4) of this title, as appropriate; (5) a certification made by the Attorney General, an official specified in section 1804(a)(6) of this title, or the head of an ele- ment of the intelligence community that— (A) the certifying official deems the infor- mation sought to be foreign intelligence in- formation; and (B) a significant purpose of the acquisition is to obtain foreign intelligence information; (6) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveil- lance Court involving the United States per- son specified in the application and the action taken on each previous application; (7) a statement of the period of time for which the acquisition is required to be main- Page 304 TITLE 50—WAR AND NATIONAL DEFENSE § 1881c tained, provided that such period of time shall not exceed 90 days per application; (8) a certification by the applicant that, to the best knowledge of the applicant, the At- torney General or a designated attorney for the Government has been apprised of all infor- mation that might reasonably— (A) call into question the accuracy of the application or the reasonableness of any as- sessment in the application conducted by the department or agency on whose behalf the application is made; or (B) otherwise raise doubts with respect to the findings required under subsection (c); and (9) non-cumulative information known to the applicant or declarant that is potentially exculpatory regarding the requested legal findings or any assessment in the application. (c) Order (1) Findings Upon an application made pursuant to sub- section (b), the Foreign Intelligence Surveil- lance Court shall enter an ex parte order as re- quested or as modified by the Court if the Court finds that— (A) the application has been made by a Federal officer and approved by the Attor- ney General; (B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is— (i) a person reasonably believed to be lo- cated outside the United States; and (ii) a foreign power, an agent of a foreign power, or an officer or employee of a for- eign power; (C) the proposed minimization procedures, with respect to their dissemination provi- sions, meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate; and (D) the application that has been filed con- tains all statements and certifications re- quired by subsection (b) and the certifi- cation provided under subsection (b)(5) is not clearly erroneous on the basis of the infor- mation furnished under subsection (b). (2) Probable cause In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the tar- get and facts and circumstances relating to current or future activities of the target. No United States person may be considered a for- eign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States. (3) Review (A) Limitations on review Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1). The judge shall not have ju- risdiction to review the means by which an acquisition under this section may be con- ducted. (B) Review of probable cause If the judge determines that the facts sub- mitted under subsection (b) are insufficient to establish probable cause to issue an order under this subsection, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pur- suant to subsection (e). (C) Review of minimization procedures If the judge determines that the minimiza- tion procedures applicable to dissemination of information obtained through an acquisi- tion under this subsection do not meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as ap- propriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determina- tion. The Government may appeal an order under this subparagraph pursuant to sub- section (e). (D) Scope of review of certification If the judge determines that an application under subsection (b) does not contain all the required elements, or that the certification provided under subsection (b)(5) is clearly er- roneous on the basis of the information fur- nished under subsection (b), the judge shall enter an order so stating and provide a writ- ten statement for the record of the reasons for such determination. The Government may appeal an order under this subpara- graph pursuant to subsection (e). (4) Duration An order under this paragraph shall be effec- tive for a period not to exceed 90 days and such order may be renewed for additional 90-day pe- riods upon submission of renewal applications meeting the requirements of subsection (b). (5) Compliance At or prior to the end of the period of time for which an order or extension is granted under this section, the judge may assess com- pliance with the minimization procedures re- ferred to in paragraph (1)(C) by reviewing the circumstances under which information con- cerning United States persons was dissemi- nated, provided that the judge may not inquire into the circumstances relating to the conduct of the acquisition. (d) Emergency authorization (1) Authority for emergency authorization Notwithstanding any other provision of this section, if the Attorney General reasonably determines that— (A) an emergency situation exists with re- spect to the acquisition of foreign intel- ligence information for which an order may be obtained under subsection (c) before an order under that subsection can, with due diligence, be obtained, and Page 305 TITLE 50—WAR AND NATIONAL DEFENSE § 1881c (B) the factual basis for the issuance of an order under this section exists, the Attorney General may authorize the emer- gency acquisition if a judge having jurisdic- tion under subsection (a)(1) is informed by the Attorney General or a designee of the Attor- ney General at the time of such authorization that the decision has been made to conduct such acquisition and if an application in ac- cordance with this section is made 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 acquisition. (2) Minimization procedures If the Attorney General authorizes an emer- gency acquisition under paragraph (1), the At- torney General shall require that the mini- mization procedures referred to in subsection (c)(1)(C) be followed. (3) Termination of emergency authorization In the absence of an order under subsection (c), an emergency acquisition under paragraph (1) shall terminate when the information sought is obtained, if the application for the order is denied, or after the expiration of 7 days from the time of authorization by the At- torney General, whichever is earliest. (4) Use of information If an application submitted to the Court pur- suant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order with respect to the target of the acquisition is issued under subsection (c), no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is deter- mined not to be a United States person, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, of- fice, agency, regulatory body, legislative com- mittee, or other authority of the United States, a State, or political subdivision there- of, and no information concerning any United States person acquired from such acquisition 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. (e) Appeal (1) Appeal to the Court of Review The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph. (2) Certiorari to the Supreme Court The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be trans- mitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision. (Pub. L. 95–511, title VII, § 704, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2453; amended Pub. L. 118–49, §§ 6(a)(4), 10(a)(5)(B), (b)(5)(B), Apr. 20, 2024, 138 Stat. 870, 876, 878.) REPEAL OF SECTION Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, except as provided in section 404 of Pub. L. 110–261, set out as a note under section 1801 of this title, effective two years after Apr. 20, 2024, this section is repealed. Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a)(2), (3)(B), (C), was in the original ‘‘this Act’’, meaning Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, known as the Foreign Intel- ligence Surveillance Act of 1978, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. AMENDMENTS 2024—Subsec. (b)(3). Pub. L. 118–49, § 6(a)(4), sub- stituted ‘‘a sworn statement of’’ for ‘‘a statement of’’ in introductory provisions. Subsec. (b)(8). Pub. L. 118–49, § 10(a)(5)(B), added par. (8). Subsec. (b)(9). Pub. L. 118–49, § 10(b)(5)(B), added par. (9). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2024 AMENDMENT Amendment by section 6(a)(4) of Pub. L. 118–49 appli- cable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 6(a)(5) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(a)(5)(B) of Pub. L. 118–49 ap- plicable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(a)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(b)(5)(B) of Pub. L. 118–49 ap- plicable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(b)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. EFFECTIVE DATE OF REPEAL Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, ex- cept as provided in section 404 of Pub. L. 110–261, set out as a Transition Procedures note under section 1801 of this title, the repeals made by section 403(b)(1) are ef- fective two years after Apr. 20, 2024. Page 306 TITLE 50—WAR AND NATIONAL DEFENSE § 1881d § 1881d. Joint applications and concurrent au- thorizations (a) Joint applications and orders If an acquisition targeting a United States person under section 1881b or 1881c of this title is proposed to be conducted both inside and out- side the United States, a judge having jurisdic- tion under section 1881b(a)(1) or 1881c(a)(1) of this title may issue simultaneously, upon the request of the Government in a joint application complying with the requirements of sections 1881b(b) and 1881c(b) of this title, orders under sections 1881b(c) and 1881c(c) of this title, as ap- propriate. (b) Concurrent authorization If an order authorizing electronic surveillance or physical search has been obtained under sec- tion 1805 or 1824 of this title, the Attorney Gen- eral may authorize, for the effective period of that order, without an order under section 1881b or 1881c of this title, the targeting of that United States person for the purpose of acquir- ing foreign intelligence information while such person is reasonably believed to be located out- side the United States. (c) Emergency authorization (1) Concurrent authorization If the Attorney General authorized the emergency employment of electronic surveil- lance or a physical search pursuant to section 1805 or 1824 of this title, the Attorney General may authorize, for the effective period of the emergency authorization and subsequent order pursuant to section 1805 or 1824 of this title, without a separate order under section 1881b or 1881c of this title, the targeting of a United States person subject to such emergency em- ployment for the purpose of acquiring foreign intelligence information while such United States person is reasonably believed to be lo- cated outside the United States. (2) Use of information If an application submitted to the Court pur- suant to section 1804 or 1823 of this title is de- nied, or in any other case in which the acquisi- tion pursuant to paragraph (1) is terminated and no order with respect to the target of the acquisition is issued under section 1805 or 1824 of this title, all information obtained or evi- dence derived from such acquisition shall be handled in accordance with section 1881c(d)(4) of this title. (Pub. L. 95–511, title VII, § 705, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2457; amended Pub. L. 115–118, title I, § 105, Jan. 19, 2018, 132 Stat. 13.) REPEAL OF SECTION Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, except as provided in section 404 of Pub. L. 110–261, set out as a note under section 1801 of this title, effective two years after Apr. 20, 2024, this section is repealed. Editorial Notes AMENDMENTS 2018—Subsec. (c). Pub. L. 115–118 added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, ex- cept as provided in section 404 of Pub. L. 110–261, set out as a Transition Procedures note under section 1801 of this title, the repeals made by section 403(b)(1) are ef- fective two years after Apr. 20, 2024. § 1881e. Use of information acquired under this subchapter (a) Information acquired under section 1881a (1) In general Information acquired from an acquisition conducted under section 1881a of this title shall be deemed to be information acquired from an electronic surveillance pursuant to subchapter I for purposes of section 1806 of this title, except for the purposes of subsection (j) of such section. (2) United States persons (A) In general Any information concerning a United States person acquired under section 1881a of this title shall not be used in evidence against that United States person pursuant to paragraph (1) in any criminal proceeding unless— (i) the Federal Bureau of Investigation obtained an order of the Foreign Intel- ligence Surveillance Court to access such information pursuant to section 1881a(f)(2) of this title; or (ii) the Attorney General determines that— (I) the criminal proceeding affects, in- volves, or is related to the national secu- rity of the United States; or (II) the criminal proceeding involves— (aa) death; (bb) kidnapping; (cc) serious bodily injury, as defined in section 1365 of title 18; (dd) conduct that constitutes a criminal offense that is a specified of- fense against a minor, as defined in section 20911 of title 34; (ee) incapacitation or destruction of critical infrastructure, as defined in section 5195c(e) of title 42; (ff) cybersecurity, including conduct described in section 5195c(e) of title 42 or section 1029, 1030, or 2511 of title 18; (gg) transnational crime, including transnational narcotics trafficking and transnational organized crime; or (hh) human trafficking.