50 U.S.C. § 1823 — Application for order

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; Page 264 TITLE 50—WAR AND NATIONAL DEFENSE § 1823 1 So in original. The word ‘‘and’’ probably should not appear. 2 So in original. The period probably should be ‘‘; and’’. (B) the premises or property to be searched contains foreign intelligence information; and (C) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power; (4) a statement of the proposed minimization procedures; (5) a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted; (6) a certification or certifications by the Assistant to the President for National Secu- rity Affairs, an executive branch official or of- ficials designated by the President from among those executive branch officers em- ployed in the area of national security or de- fense and appointed by the President, by and with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official— (A) that the certifying official deems the information sought to be foreign intel- ligence information; (B) that a significant purpose of the search is to obtain foreign intelligence information; (C) that such information cannot reason- ably be obtained by normal investigative techniques; (D) that designates the type of foreign in- telligence information being sought accord- ing to the categories described in section 1801(e) of this title; (E) includes a statement explaining the basis for the certifications required by sub- paragraphs (C) and (D); and (F) that none of the information included in the statement described in paragraph (3) was solely produced by, derived from infor- mation produced by, or obtained using the funds of, a political organization (as such term is defined in section 527 of title 26), un- less— (i) the political organization is clearly identified in the body of the statement de- scribed in paragraph (3); (ii) the information has been corrobo- rated; and (iii) the investigative techniques used to corroborate the information are clearly identified in the body of the statement de- scribed in paragraph (3); and (G) that none of the information included in the statement described in paragraph (3) is attributable to or derived from the con- tent of a media source unless the statement includes a clear identification of each author of that content, where applicable, the pub- lisher of that content, information to cor- roborate that which was derived from the media source, and an explanation of the in- vestigative techniques used to corroborate the information; (7) where the physical search involves a search of the residence of a United States per- son, the Attorney General shall state what in- vestigative techniques have previously been utilized to obtain the foreign intelligence in- formation concerned and the degree to which these techniques resulted in acquiring such in- formation; (8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, premises, or property specified in the application, and the action taken on each previous application; (9) in the case of an application for an exten- sion of an order under this subchapter in which the target of the physical search is a United States person, a summary statement of the foreign intelligence information obtained pursuant to the original order (and any pre- ceding extension thereof) as of the date of the application for the extension, or a reasonable explanation of the failure to obtain such infor- mation; and 1 (10) 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 section 1824(a) of this title.2 (11) non-cumulative information known to the applicant or declarant that is potentially exculpatory regarding the requested legal findings or any assessment in the application. (b) Additional affidavits or certifications The Attorney General may require any other affidavit or certification from any other officer in connection with the application. (c) Additional information The judge may require the applicant to fur- nish such other information as may be necessary to make the determinations required by section 1824 of this title. (d) Personal review by Attorney General (1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Sec- retary of Defense, the Secretary of State, the Director of National Intelligence, or the Direc- tor of the Central Intelligence Agency, the At- torney General shall personally review under subsection (a) an application under that sub- section for a target described in section 1801(b)(2) of this title. (B) Except when disabled or otherwise unavail- able to make a request referred to in subpara- graph (A), an official referred to in that subpara- graph may not delegate the authority to make a request referred to in that subparagraph. (C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such au- thority is clearly established in the event such official is disabled or otherwise unavailable to make such request. Page 265 TITLE 50—WAR AND NATIONAL DEFENSE § 1823 (2)(A) If as a result of a request under para- graph (1) the Attorney General determines not to approve an application under the second sen- tence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the de- termination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a deter- mination under that sentence. The Attorney General shall take appropriate actions in ad- vance to ensure that delegation of such respon- sibility is clearly established in the event the Attorney General is disabled or otherwise un- available to make such determination. (B) Notice with respect to an application under subparagraph (A) shall set forth the modi- fications, if any, of the application that are nec- essary in order for the Attorney General to ap- prove the application under the second sentence of subsection (a) for purposes of making the ap- plication under this section. (C) Upon review of any modifications of an ap- plication set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subpara- graph. Except when disabled or otherwise un- available to supervise the making of any modi- fication under the preceding sentence, such offi- cial may not delegate the responsibility to su- pervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the mak- ing of such modification. (Pub. L. 95–511, title III, § 303, as added Pub. L. 103–359, title VIII, § 807(a)(3), Oct. 14, 1994, 108 Stat. 3446; amended Pub. L. 106–567, title VI, § 603(a), Dec. 27, 2000, 114 Stat. 2852; Pub. L. 107–56, title II, § 218, Oct. 26, 2001, 115 Stat. 291; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 110–261, title I, § 107(a), July 10, 2008, 122 Stat. 2462; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748; Pub. L. 118–49, §§ 6(a)(2), (b)(2), (c)(2), (e)(2), (f)(2), 10(a)(2), (b)(2), Apr. 20, 2024, 138 Stat. 870–873, 875, 877.) Editorial Notes AMENDMENTS 2024—Subsec. (a)(3). Pub. L. 118–49, § 6(a)(2), sub- stituted ‘‘a sworn statement of’’ for ‘‘a statement of’’ in introductory provisions. Subsec. (a)(3)(A). Pub. L. 118–49, § 6(f)(2), inserted be- fore semicolon at end ‘‘, 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 section 1801(b)(2)(B) of this title), that a violation of the crimi- nal statutes of the United States as referred to in sec- tion 1801(b)(2)(B) of this title has occurred or is about to occur’’. Subsec. (a)(6)(F). Pub. L. 118–49, § 6(b)(2), added sub- par. (F). Subsec. (a)(6)(G). Pub. L. 118–49, § 6(c)(2), added sub- par. (G). Subsec. (a)(9). Pub. L. 118–49, § 6(e)(2), added par. (9). Subsec. (a)(10). Pub. L. 118–49, § 10(a)(2), added par. (10). Subsec. (a)(11). Pub. L. 118–49, § 10(b)(2), added par. (11). 2010—Subsec. (d)(1)(A). Pub. L. 111–259 made technical amendment to directory language of Pub. L. 108–458. See 2004 Amendment note below. 2008—Subsec. (a)(2). Pub. L. 110–261, § 107(a)(1)(A)–(C), redesignated par. (3) as (2), struck out ‘‘detailed’’ before ‘‘description of the premises’’, and struck out former par. (2) which read as follows: ‘‘the authority conferred on the Attorney General by the President and the ap- proval of the Attorney General to make the applica- tion;’’. Subsec. (a)(3). Pub. L. 110–261, § 107(a)(1)(B), (D), redes- ignated par. (4) as (3) and inserted ‘‘or is about to be’’ before ‘‘owned’’ in subpar. (C). Former par. (3) redesig- nated (2). Subsec. (a)(4), (5). Pub. L. 110–261, § 107(a)(1)(B), redes- ignated pars. (5) and (6) as (4) and (5), respectively. Former par. (4) redesignated (3). Subsec. (a)(6). Pub. L. 110–261, § 107(a)(1)(B), (E), redes- ignated par. (7) as (6) and substituted ‘‘Affairs,’’ for ‘‘Affairs or’’ and ‘‘Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—’’ for ‘‘Senate—’’ in introductory provisions. Former par. (6) redesignated (5). Subsec. (a)(7) to (9). Pub. L. 110–261, § 107(a)(1)(B), re- designated pars. (8) and (9) as (7) and (8), respectively. Former par. (7) redesignated (6). Subsec. (d)(1)(A). Pub. L. 110–261, § 107(a)(2), sub- stituted ‘‘the Director of National Intelligence, or the Director of the Central Intelligence Agency’’ for ‘‘or the Director of National Intelligence’’. 2004—Subsec. (d)(1)(A). Pub. L. 108–458, as amended by Pub. L. 111–259, substituted ‘‘Director of National Intel- ligence’’ for ‘‘Director of Central Intelligence’’. 2001—Subsec. (a)(7)(B). Pub. L. 107–56 substituted ‘‘a significant purpose’’ for ‘‘the purpose’’. 2000—Subsec. (d). Pub. L. 106–567 added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2024 AMENDMENT Amendment by section 6(a)(2) 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 6(b)(2) 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(b)(3) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 6(c)(2) 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(c)(3) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 6(e)(2) 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(e)(3) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 6(f)(2) 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(f)(3) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(a)(2) 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 10(a)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(b)(2) 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 Page 266 TITLE 50—WAR AND NATIONAL DEFENSE § 1824 10(b)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. 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 OFFICIALS DESIGNATED TO MAKE CERTIFICATIONS For provisions listing officials designated by Presi- dent to make certifications required by subsec. (a)(7) of this section, see Ex. Ord. No. 12949, § 3, Feb. 9, 1995, 60 F.R. 8169, set out as a note under section 1822 of this title. § 1824. Issuance of order (a) Necessary findings Upon an application made pursuant to section 1823 of this title, the judge shall enter an ex parte order as requested or as modified approv- ing the physical search if the judge finds that— (1) the application has been made by a Fed- eral officer and approved by the Attorney Gen- eral; (2) on the basis of the facts submitted by the applicant there is probable cause to believe that— (A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and (B) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power; (3) the proposed minimization procedures meet the definition of minimization contained in this subchapter; and (4) the application which has been filed con- tains all statements and certifications re- quired by section 1823 of this title, and, if the target is a United States person, the certifi- cation or certifications are not clearly erro- neous on the basis of the statement made under section 1823(a)(6)(E) of this title and any other information furnished under section 1823(c) of this title. (b) Determination of probable cause In determining whether or not probable cause exists for purposes of an order under subsection (a)(2), a judge may consider past activities of the target, as well as facts and circumstances relat- ing to current or future activities of the target. (c) Specifications and directions of orders An order approving a physical search under this section shall— (1) specify— (A) the identity, if known, or a description of the target of the physical search; (B) the nature and location of each of the premises or property to be searched; (C) the type of information, material, or property to be seized, altered, or reproduced; (D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and (E) the period of time during which phys- ical searches are approved; and (2) direct— (A) that the minimization procedures be followed; (B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forth- with all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search; (C) that such landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid fur- nished that such person wishes to retain; (D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and (E) that the Federal officer conducting the physical search promptly report to the court the circumstances and results of the phys- ical search. (d) Duration of order; assessment of compliance (1) An order issued under this section may ap- prove a physical search for the period necessary to achieve its purpose, or for 90 days, whichever is less, except that (A) an order under this sec- tion shall approve a physical search targeted against a foreign power for the period specified in the application or for one year, whichever is less, and (B) an order under this section for a physical search targeted against an agent of a foreign power who is not a United States person may be for the period specified in the applica- tion or for one year, whichever is less. (2) At or before the end of the period of time for which a physical search is approved by an order or an extension, or at any time after a