50 U.S.C. § 1822 — Authorization of physical searches for for-

Page 262 TITLE 50—WAR AND NATIONAL DEFENSE § 1822 on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representa- tives before the date of enactment of this Act.’’ § 1822. Authorization of physical searches for for- eign intelligence purposes (a) Presidential authorization (1) Notwithstanding any other provision of law, the President, acting through the Attorney General, may authorize physical searches with- out a court order under this subchapter to ac- quire foreign intelligence information for peri- ods 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 pow- ers (as defined in section 1801(a)(1), (2), or (3) of this title); (ii) there is no substantial likelihood that the physical search will involve the prem- ises, 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 sec- tion 1821(4) of this title; and (B) the Attorney General reports such mini- mization procedures and any changes thereto to the Permanent Select Committee on Intel- ligence 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 mini- mization procedures and the reason for their becoming effective immediately. (2) A physical search authorized by this sub- section may be conducted only in accordance with the certification and minimization proce- dures adopted by the Attorney General. The At- torney General shall assess compliance with such procedures and shall report such assess- ments 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 section 1826 of this title. (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 se- curity measures established by the Chief Justice of the United States with the concurrence of the Attorney General, in consultation with the Di- rector of National Intelligence, and shall remain sealed unless— (A) an application for a court order with re- spect to the physical search is made under sec- tion 1821(4) of this title and section 1823 of this title; or (B) the certification is necessary to deter- mine the legality of the physical search under section 1825(g) of this title. (4)(A) With respect to physical searches au- thorized by this subsection, the Attorney Gen- eral may direct a specified landlord, custodian, or other specified person to— (i) furnish all information, facilities, or as- sistance necessary to accomplish the physical search in such a manner as will protect its se- crecy and produce a minimum of interference with the services that such landlord, custo- dian, or other person is providing the target of the physical search; and (ii) maintain under security procedures ap- proved by the Attorney General and the Direc- tor of National Intelligence any records con- cerning 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 sub- chapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the Foreign Intelligence Surveillance Court. Notwith- standing any other provision of law, a judge of the court to whom application is made may grant an order in accordance with section 1824 of this title approving a physical search in the United States of the premises, property, infor- mation, or material of a foreign power or an agent of a foreign power for the purpose of col- lecting foreign intelligence information. (c) Jurisdiction of Foreign Intelligence Surveil- lance 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 in- formation anywhere within the United States under the procedures set forth in this sub- chapter, except that no judge (except when sit- ting en banc) shall hear the same application which has been denied previously by another judge designated under section 1803(a) of this title. If any judge so designated denies an appli- cation for an order authorizing a physical search under this subchapter, such judge shall provide immediately for the record a written statement of each reason for such decision and, on motion of the United States, the record shall be trans- mitted, under seal, to the court of review estab- lished under section 1803(b) of this title. (d) Court of review; record; transmittal to Su- preme Court The court of review established under section 1803(b) of this title shall have jurisdiction to re- view the denial of any application made under this subchapter. 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 Su- preme Court, which shall have jurisdiction to re- view such decision. (e) Expeditious conduct of proceedings; security measures for maintenance of records Judicial proceedings under this subchapter shall be concluded as expeditiously as possible. Page 263 TITLE 50—WAR AND NATIONAL DEFENSE § 1823 The record of proceedings under this subchapter, including applications made and orders granted, shall be maintained under security measures es- tablished by the Chief Justice of the United States in consultation with the Attorney Gen- eral and the Director of National Intelligence. (Pub. L. 95–511, title III, § 302, as added Pub. L. 103–359, title VIII, § 807(a)(3), Oct. 14, 1994, 108 Stat. 3444; amended Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 110–261, title I, § 109(b)(2)(B), July 10, 2008, 122 Stat. 2465; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748; Pub. L. 115–118, title II, § 205(a)(2), (b)(3), Jan. 19, 2018, 132 Stat. 21, 22.) Editorial Notes AMENDMENTS 2018—Subsec. (a)(1)(A)(iii). Pub. L. 115–118, § 205(a)(2), substituted ‘‘subparagraphs (A) through (D)’’ for ‘‘para- graphs (1) through (4)’’. Subsec. (d). Pub. L. 115–118, § 205(b)(3), struck out ‘‘im- mediately’’ after ‘‘the court shall’’. 2010—Subsecs. (a)(3), (4)(A)(ii), (e). Pub. L. 111–259 made technical amendment to directory language of Pub. L. 108–458. See 2004 Amendment note below. 2008—Subsec. (c). Pub. L. 110–261 inserted ‘‘(except when sitting en banc)’’ after ‘‘except that no judge’’. 2004—Subsecs. (a)(3), (4)(A)(ii), (e). Pub. L. 108–458, as amended by Pub. L. 111–259, substituted ‘‘Director of National Intelligence’’ for ‘‘Director of Central Intel- ligence’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–261 effective July 10, 2008, except as provided in section 404 of Pub. L. 110–261, set out as a Transition Procedures note under section 1801 of this title, see section 402 of Pub. L. 110–261, set out as an Effective Date of 2008 Amendment note under sec- tion 1801 of this title. EFFECTIVE DATE OF 2004 AMENDMENT For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memo- randum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of this title. Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out in an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of this title. EFFECTIVE DATE Section effective 90 days after Oct. 14, 1994, with ex- ception for certain physical searches approved by the Attorney General to gather foreign intelligence infor- mation, see section 807(c) of Pub. L. 103–359, set out as a note under section 1821 of this title. Executive Documents EX. ORD. NO. 12949. FOREIGN INTELLIGENCE PHYSICAL SEARCHES Ex. Ord. No. 12949, Feb. 9, 1995, 60 F.R. 8169, as amend- ed 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, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States, includ- ing sections 302 and 303 of the Foreign Intelligence Sur- veillance Act of 1978 (‘‘Act’’) (50 U.S.C. 1801, et seq.), as amended by Public Law 103–359 [50 U.S.C. 1822, 1823], and in order to provide for the authorization of phys- ical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows: SECTION 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign in- telligence information for periods of up to one year, if the Attorney General makes the certifications required by that section. SEC. 2. Pursuant to section 302(b) of the Act, the At- torney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under sec- tion 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intel- ligence information. SEC. 3. Pursuant to section 303(a)(6) of the Act, the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 303(a)(6) of the Act in support of applications to conduct physical searches: (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 Intel- ligence; and (i) Deputy Director of the Federal Bureau of Inves- tigation. 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 pre- ceding sentence that the named official must be ap- pointed 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 At- torney 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 Intel- ligence Surveillance Court. Each application shall require the approval of the Attorney Gen- eral based upon the Attorney General’s finding that it satisfies the criteria and requirements for such application as set forth in this sub- chapter. 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 sworn statement of the facts and cir- cumstances 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, and, in the case of a target that is a United States person alleged to be acting as an agent of a foreign power (as described in sec- tion 1801(b)(2)(B) of this title), that a viola- tion of the criminal statutes of the United States as referred to in section 1801(b)(2)(B) of this title has occurred or is about to occur;