50 U.S.C. § 1861 — Definitions

Page 277 TITLE 50—WAR AND NATIONAL DEFENSE § 1861 § 1846. Congressional oversight (a) On a semiannual basis, the Attorney Gen- eral shall fully inform the Permanent Select Committee on Intelligence of the House of Rep- resentatives and the Select Committee on Intel- ligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all uses of pen registers and trap and trace devices pursuant to this subchapter. (b) On a semiannual basis, the Attorney Gen- eral shall also provide to the committees re- ferred to in subsection (a) a report setting forth with respect to the preceding 6-month period— (1) the total number of applications made for orders approving the use of pen registers or trap and trace devices under this subchapter; (2) the total number of such orders either granted, modified, or denied; (3) the total number of pen registers and trap and trace devices whose installation and use was authorized by the Attorney General on an emergency basis under section 1843 of this title, and the total number of subsequent orders approving or denying the installation and use of such pen registers and trap and trace devices; (4) each department or agency on behalf of which the Attorney General or a designated attorney for the Government has made an ap- plication for an order authorizing or approving the installation and use of a pen register or trap and trace device under this subchapter; (5) for each department or agency described in paragraph (4), each number described in paragraphs (1), (2), and (3); and (6) a good faith estimate of the total number of subjects who were targeted by the installa- tion and use of a pen register or trap and trace device under an order or emergency authoriza- tion issued under this subchapter, rounded to the nearest 500, including— (A) the number of such subjects who are United States persons, reported to the near- est band of 500, starting with 0–499; and (B) of the number of United States persons described in subparagraph (A), the number of persons whose information acquired pursu- ant to such order was reviewed or accessed by a Federal officer, employee, or agent, re- ported to the nearest band of 500, starting with 0–499. (c) Each report under subsection (b) shall be submitted in unclassified form, to the extent consistent with national security. Not later than 7 days after the date on which the Attor- ney General submits such a report, the Attorney General shall make the report publicly avail- able, or, if the Attorney General determines that the report cannot be made publicly avail- able consistent with national security, the At- torney General may make publicly available an unclassified summary of the report or a redacted version of the report. (Pub. L. 95–511, title IV, § 406, as added Pub. L. 105–272, title VI, § 601(2), Oct. 20, 1998, 112 Stat. 2410; amended Pub. L. 109–177, title I, §§ 109(b), 128(b), Mar. 9, 2006, 120 Stat. 204, 229; Pub. L. 114–23, title VI, § 605(c), June 2, 2015, 129 Stat. 298; Pub. L. 115–118, title I, § 107(b), title II, § 205(a)(3), Jan. 19, 2018, 132 Stat. 14, 21.) Editorial Notes AMENDMENTS 2018—Subsec. (b). Pub. L. 115–118, § 205(a)(3), struck out ‘‘and to the Committees on the Judiciary of the House of Representatives and the Senate’’ after ‘‘to the committees referred to in subsection (a)’’ in introduc- tory provisions. Subsec. (b)(6). Pub. L. 115–118, § 107(b)(1), added par. (6). Subsec. (c). Pub. L. 115–118, § 107(b)(2), added subsec. (c). 2015—Subsec. (b)(4), (5). Pub. L. 114–23 added pars. (4) and (5). 2006—Subsec. (a). Pub. L. 109–177, § 128(b), inserted ‘‘, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate,’’ after ‘‘Select Committee on Intelligence of the Senate’’. Subsec. (b)(3). Pub. L. 109–177, § 109(b), added par. (3). SUBCHAPTER IV—ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN IN- TELLIGENCE PURPOSES § 1861. Definitions As used in this subchapter: (1) The terms ‘‘foreign power’’, ‘‘agent of a foreign power’’, ‘‘foreign intelligence informa- tion’’, ‘‘international terrorism’’, and ‘‘Attor- ney General’’ shall have the same meanings as in section 1801 of this title. (2) The term ‘‘common carrier’’ means any person or entity transporting people or prop- erty by land, rail, water, or air for compensa- tion. (3) The term ‘‘physical storage facility’’ means any business or entity that provides space for the storage of goods or materials, or services related to the storage of goods or ma- terials, to the public or any segment thereof. (4) The term ‘‘public accommodation facil- ity’’ means any inn, hotel, motel, or other es- tablishment that provides lodging to transient guests. (5) The term ‘‘vehicle rental facility’’ means any person or entity that provides vehicles for rent, lease, loan, or other similar use to the public or any segment thereof. (Pub. L. 95–511, title V, § 501, as added Pub. L. 107–56, title II, § 215, Oct. 26, 2001, 115 Stat. 287; amended Pub. L. 107–108, title III, § 314(a)(6), Dec. 28, 2001, 115 Stat. 1402; Pub. L. 109–177, title I, §§ 102(b)(1), 106(a)–(e), (f)(2), (g), Mar. 9, 2006, 120 Stat. 195–198; Pub. L. 109–178, §§ 3, 4(a), Mar. 9, 2006, 120 Stat. 278, 280; Pub. L. 111–118, div. B, § 1004(a), Dec. 19, 2009, 123 Stat. 3470; Pub. L. 111–141, § 1(a), Feb. 27, 2010, 124 Stat. 37; Pub. L. 112–3, § 2(a), Feb. 25, 2011, 125 Stat. 5; Pub. L. 112–14, § 2(a), May 26, 2011, 125 Stat. 216; Pub. L. 114–23, title I, §§ 101–107, title VII, § 705(a), (c), June 2, 2015, 129 Stat. 269–273, 300; Pub. L. 115–118, title II, § 205(b)(6), Jan. 19, 2018, 132 Stat. 22; Pub. L. 116–69, div. B, title VII, § 1703(a), Nov. 21, 2019, 133 Stat. 1143.) Editorial Notes CODIFICATION Pursuant to Pub. L. 109–177, § 102(b)(1), as amended by Pub. L. 112–14, this section was amended, effective June 1, 2015, to read as it read on Oct. 25, 2001. The amend- ments made by Pub. L. 114–23, which was enacted June Page 278 TITLE 50—WAR AND NATIONAL DEFENSE § 1861 2, 2015, were directed to this section as it read prior to such reversion and were executed as if the reversion had not taken place, to reflect the probable intent of Congress and the extension of the provisions of this section to Dec. 15, 2019, by Pub. L. 114–23, § 705(a), (c). See 2015 Amendment notes below. PRIOR PROVISIONS A prior section 1861, Pub. L. 95–511, title V, § 501, as added Pub. L. 105–272, title VI, § 602, Oct. 20, 1998, 112 Stat. 2410, defined terms used in this subchapter, prior to repeal by Pub. L. 107–56, title II, § 215, Oct. 26, 2001, 115 Stat. 287. AMENDMENTS 2019—Pub. L. 116–69 amended directory language of Pub. L. 109–177, § 102(b)(1). See 2006 Amendment note below. 2018—Subsec. (c)(4). Pub. L. 115–118 added par. (4). 2015—Pub. L. 114–23, § 705(a), (c), amended directory language of Pub. L. 109–177, § 102(b)(1). See Codification note above and 2006 Amendment note below. Subsec. (b)(2)(A). Pub. L. 114–23, § 103(a), added subpar. (A). Former subpar. (A) redesignated (B). Pub. L. 114–23, § 101(a)(1)(A), substituted ‘‘in the case of an application other than an application described in subparagraph (C) (including an application for the pro- duction of call detail records other than in the manner described in subparagraph (C)), a statement’’ for ‘‘a statement’’ in introductory provisions. Subsec. (b)(2)(A)(iii). Pub. L. 114–23, § 101(a)(1)(B), struck out ‘‘and’’ at end. Subsec. (b)(2)(B). Pub. L. 114–23, § 101(a)(2), redesig- nated subpar. (A) as (B). Former subpar. (B) redesig- nated (D). Subsec. (b)(2)(C). Pub. L. 114–23, § 101(a)(3), added sub- par. (C). Subsec. (b)(2)(D). Pub. L. 114–23, § 101(a)(2), redesig- nated subpar. (B) as (D). Subsec. (c)(1). Pub. L. 114–23, § 104(a)(1), inserted ‘‘and that the minimization procedures submitted in accord- ance with subsection (b)(2)(D) meet the definition of minimization procedures under subsection (g)’’ after ‘‘subsections (a) and (b)’’. Subsec. (c)(2)(A). Pub. L. 114–23, § 103(b)(1), inserted before semicolon at end ‘‘, including each specific se- lection term to be used as the basis for the produc- tion’’. Subsec. (c)(2)(F). Pub. L. 114–23, § 101(b), added subpar. (F). Subsec. (c)(3). Pub. L. 114–23, § 103(b)(2), added par. (3). Subsec. (d)(1). Pub. L. 114–23, § 102(b)(1)(A), sub- stituted ‘‘pursuant to an order issued or an emergency production required’’ for ‘‘pursuant to an order’’ in in- troductory provisions. Subsec. (d)(1)(A). Pub. L. 114–23, § 102(b)(1)(B), sub- stituted ‘‘such order or such emergency production’’ for ‘‘such order’’. Subsec. (d)(1)(B). Pub. L. 114–23, § 102(b)(1)(C), sub- stituted ‘‘the order or the emergency production’’ for ‘‘the order’’. Subsec. (d)(2)(A). Pub. L. 114–23, § 102(b)(2)(A), sub- stituted ‘‘an order or emergency production’’ for ‘‘an order’’. Subsec. (d)(2)(B). Pub. L. 114–23, § 102(b)(2)(B), sub- stituted ‘‘an order or emergency production’’ for ‘‘an order’’. Subsec. (e). Pub. L. 114–23, § 105, amended subsec. (e) generally. Prior to amendment, text read as follows: ‘‘A person who, in good faith, produces tangible things under an order pursuant to this section shall not be lia- ble to any other person for such production. Such pro- duction shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.’’ Subsec. (f)(2)(A)(i). Pub. L. 114–23, § 104(b)(1), sub- stituted ‘‘the production order or any nondisclosure order imposed in connection with the production order’’ for ‘‘that order’’ and struck out at end ‘‘Not less than 1 year after the date of the issuance of the produc- tion order, the recipient of a production order may challenge the nondisclosure order imposed in connec- tion with such production order by filing a petition to modify or set aside such nondisclosure order, con- sistent with the requirements of subparagraph (C), with the pool established by section 1803(e)(1) of this title.’’ Subsec. (f)(2)(C)(ii), (iii). Pub. L. 114–23, § 104(b)(2), re- designated cl. (iii) as (ii) and struck out former cl. (ii) which read as follows: ‘‘If, upon filing of such a peti- tion, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation certifies that disclo- sure may endanger the national security of the United States or interfere with diplomatic relations, such cer- tification shall be treated as conclusive, unless the judge finds that the certification was made in bad faith.’’ Subsec. (g)(1). Pub. L. 114–23, § 104(a)(3), substituted ‘‘The’’ for ‘‘Not later than 180 days after March 9, 2006, the’’ and inserted ‘‘, and update as appropriate,’’ after ‘‘adopt’’. Subsec. (g)(3). Pub. L. 114–23, § 104(a)(2), added par. (3). Subsec. (i). Pub. L. 114–23, § 102(a), which directed add- ing subsec. (i) at the end of this section, effective after the addition of subsecs. (j) and (k), was executed by adding subsec. (i) after subsec. (h) to reflect the prob- able intent of Congress. Subsec. (j). Pub. L. 114–23, § 106, added subsec. (j). Subsec. (k). Pub. L. 114–23, § 107, added subsec. (k). 2011—Pub. L. 112–14 amended directory language of Pub. L. 109–177, § 102(b)(1). See 2006 Amendment note below. Pub. L. 112–3 amended directory language of Pub. L. 109–177, § 102(b)(1). See 2006 Amendment note below. 2010—Pub. L. 111–141 amended directory language of Pub. L. 109–177, § 102(b)(1). See 2006 Amendment note below. 2009—Pub. L. 111–118 amended directory language of Pub. L. 109–177, § 102(b)(1). See 2006 Amendment note below. 2006—Pub. L. 109–177, § 102(b)(1), as amended by Pub. L. 111–118, Pub. L. 111–141, Pub. L. 112–3, Pub. L. 112–14, Pub. L. 114–23, § 705(a), (c), and Pub. L. 116–69, amended section effective Mar. 15, 2020, so as to read as it read on Oct. 25, 2001. Prior to amendment, section related to access to certain business records for foreign intel- ligence and international terrorism investigations. Subsec. (a)(1). Pub. L. 109–177, § 106(a)(1), substituted ‘‘Subject to paragraph (3), the Director’’ for ‘‘The Di- rector’’. Subsec. (a)(3). Pub. L. 109–177, § 106(a)(2), added par. (3). Subsec. (b)(2). Pub. L. 109–177, § 106(b), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘shall specify that the records concerned are sought for an authorized investigation conducted in ac- cordance with subsection (a)(2) to obtain foreign intel- ligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.’’ Subsec. (c). Pub. L. 109–177, § 106(c), (d), amended sub- sec. (c) generally. Prior to amendment, text read as fol- lows: ‘‘(1) Upon an application made pursuant to this sec- tion, the judge shall enter an ex parte order as re- quested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section. ‘‘(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation de- scribed in subsection (a).’’ Subsec. (d). Pub. L. 109–177, § 106(e), amended subsec. (d) generally. Prior to amendment, text read as follows: ‘‘No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.’’ Subsec. (d)(2)(C). Pub. L. 109–178, § 4(a), amended sub- par. (C) generally. Prior to amendment, subpar. (C) Page 279 TITLE 50—WAR AND NATIONAL DEFENSE § 1862 1 So in original. No subpar. (C) or (D) has been enacted. read as follows: ‘‘At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Di- rector or such designee the person to whom such disclo- sure will be made or to whom such disclosure was made prior to the request, but in no circumstance shall a per- son be required to inform the Director or such designee that the person intends to consult an attorney to ob- tain legal advice or legal assistance.’’ Subsec. (f). Pub. L. 109–178, § 3, amended subsec. (f) generally. Prior to amendment, subsec. (f) provided for judicial proceedings relating to challenging an order to produce tangible things. Pub. L. 109–177, § 106(f)(2), added subsec. (f). Subsecs. (g), (h). Pub. L. 109–177, § 106(g), added sub- secs. (g) and (h). 2001—Subsec. (a)(1). Pub. L. 107–108 inserted ‘‘to ob- tain foreign intelligence information not concerning a United States person or’’ after ‘‘an investigation’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Pub. L. 114–23, title I, § 109(a), June 2, 2015, 129 Stat. 276, provided that: ‘‘The amendments made by sections 101 through 103 [amending this section] shall take ef- fect on the date that is 180 days after the date of the enactment of this Act [June 2, 2015].’’ EFFECTIVE DATE OF 2006 AMENDMENT Amendment by section 102(b)(1) of Pub. L. 109–177 ef- fective Mar. 15, 2020, except that former provisions to continue in effect with respect to any particular for- eign intelligence investigation that began before Mar. 15, 2020, or with respect to any particular offense or po- tential offense that began or occurred before Mar. 15, 2020, see section 102(b) of Pub. L. 109–177, set out as a note under section 1805 of this title. CONSTRUCTION OF PUB. L. 114–23 Pub. L. 114–23, title I, § 109(b), June 2, 2015, 129 Stat. 276, provided that: ‘‘Nothing in this Act [see Tables for classification] shall be construed to alter or eliminate the authority of the Government to obtain an order under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) as in effect prior to the effective date described in subsection (a) [see Effec- tive Date of 2015 Amendment note above] during the pe- riod ending on such effective date.’’ Pub. L. 114–23, title I, § 110, June 2, 2015, 129 Stat. 276, provided that: ‘‘Nothing in this Act [see Tables for clas- sification] shall be construed to authorize the produc- tion of the contents (as such term is defined in section 2510(8) of title 18, United States Code) of any electronic communication from an electronic communication service provider (as such term is defined in section 701(b)(4) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881(b)(4))) under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.).’’ § 1862. Access to certain business records for for- eign intelligence and international terrorism investigations (a) Application for authorization The Director of the Federal Bureau of Inves- tigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order authorizing a common carrier, public accommodation facility, physical storage facil- ity, or vehicle rental facility to release records in its possession for an investigation to gather foreign intelligence information or an investiga- tion concerning international terrorism which investigation is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Ex- ecutive Order No. 12333, or a successor order. (b) Recipient and contents of application Each application under this section— (1) shall be made to— (A) a judge of the court established by sec- tion 1803(a) of this title; or (B) a United States Magistrate Judge under chapter 43 of title 28 who is publicly designated by the Chief Justice of the United States to have the power to hear ap- plications and grant orders for the release of records under this section on behalf of a judge of that court; and (2) shall specify that— (A) the records concerned are sought for an investigation described in subsection (a); (B) there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power; (E) 1 a statement by the applicant that, to the best knowledge of the applicant, the ap- plication fairly reflects all information that might reasonably— (i) call into question the accuracy of the application or the reasonableness of any assessment in the application conducted by the department or agency on whose be- half the application is made; or (ii) otherwise raise doubts with respect to the findings required under subsection (c); and (F) non-cumulative information known to the applicant that is potentially exculpatory regarding the requested legal findings or any assessment in the application. (c) Ex parte judicial order of approval (1) Upon application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the re- lease of records if the judge finds that the appli- cation satisfies the requirements of this section. (2) An order under this subsection shall not disclose that it is issued for purposes of an in- vestigation described in subsection (a). (d) Compliance; nondisclosure (1) Any common carrier, public accommoda- tion facility, physical storage facility, or vehi- cle rental facility shall comply with an order under subsection (c). (2) No common carrier, public accommodation facility, physical storage facility, or vehicle rental facility, or officer, employee, or agent thereof, shall disclose to any person (other than those officers, agents, or employees of such com- mon carrier, public accommodation facility, physical storage facility, or vehicle rental facil- ity necessary to fulfill the requirement to dis- close information to the Federal Bureau of In- vestigation under this section) that the Federal Bureau of Investigation has sought or obtained records pursuant to an order under this section. (Pub. L. 95–511, title V, § 502, as added Pub. L. 107–56, title II, § 215, Oct. 26, 2001, 115 Stat. 288;