50 U.S.C. § 1813 — Procedures for the retention of inciden-

Page 260 TITLE 50—WAR AND NATIONAL DEFENSE § 1813 Stat. 1783, known as the Foreign Intelligence Surveil- lance 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. 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. § 1813. Procedures for the retention of inciden- tally acquired communications (a) Definitions In this section: (1) Covered communication The term ‘‘covered communication’’ means any nonpublic telephone or electronic commu- nication acquired without the consent of a person who is a party to the communication, including communications in electronic stor- age. (2) Head of an element of the intelligence com- munity The term ‘‘head of an element of the intel- ligence community’’ means, as appropriate— (A) the head of an element of the intel- ligence community; or (B) the head of the department or agency containing such element. (3) United States person The term ‘‘United States person’’ has the meaning given that term in section 1801 of this title. (b) Procedures for covered communications (1) Requirement to adopt Not later than 2 years after December 19, 2014, each head of an element of the intel- ligence community shall adopt procedures ap- proved by the Attorney General for such ele- ment that ensure compliance with the require- ments of paragraph (3). (2) Coordination and approval The procedures required by paragraph (1) shall be— (A) prepared in coordination with the Di- rector of National Intelligence; and (B) approved by the Attorney General prior to issuance. (3) Procedures (A) Application The procedures required by paragraph (1) shall apply to any intelligence collection ac- tivity not otherwise authorized by court order (including an order or certification issued by a court established under sub- section (a) or (b) of section 1803 of this title), subpoena, or similar legal process that is reasonably anticipated to result in the ac- quisition of a covered communication to or from a United States person and shall per- mit the acquisition, retention, and dissemi- nation of covered communications subject to the limitation in subparagraph (B). (B) Limitation on retention A covered communication shall not be re- tained in excess of 5 years, unless— (i) the communication has been affirma- tively determined, in whole or in part, to constitute foreign intelligence or counter- intelligence or is necessary to understand or assess foreign intelligence or counter- intelligence; (ii) the communication is reasonably be- lieved to constitute evidence of a crime and is retained by a law enforcement agen- cy; (iii) the communication is enciphered or reasonably believed to have a secret mean- ing; (iv) all parties to the communication are reasonably believed to be non-United States persons; (v) retention is necessary to protect against an imminent threat to human life, in which case both the nature of the threat and the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the date such retention is extended under this clause; (vi) retention is necessary for technical assurance or compliance purposes, includ- ing a court order or discovery obligation, in which case access to information re- tained for technical assurance or compli- ance purposes shall be reported to the con- gressional intelligence committees on an annual basis; or (vii) retention for a period in excess of 5 years is approved by the head of the ele- ment of the intelligence community re- sponsible for such retention, based on a de- termination that retention is necessary to protect the national security of the United States, in which case the head of such ele- ment shall provide to the congressional in- telligence committees a written certifi- cation describing— (I) the reasons extended retention is necessary to protect the national secu- rity of the United States; (II) the duration for which the head of the element is authorizing retention; (III) the particular information to be retained; and (IV) the measures the element of the intelligence community is taking to pro- tect the privacy interests of United States persons or persons located inside the United States. (Pub. L. 113–293, title III, § 309, Dec. 19, 2014, 128 Stat. 3998.) Editorial Notes CODIFICATION Section was enacted as part of the Intelligence Au- thorization Act for Fiscal Year 2015, and not as part of the Foreign Intelligence Surveillance Act of 1978 which comprises this chapter. Page 261 TITLE 50—WAR AND NATIONAL DEFENSE § 1821 Statutory Notes and Related Subsidiaries DEFINITIONS For definitions of ‘‘congressional intelligence com- mittees’’ and ‘‘intelligence community’’ as used in this section, see section 2 of Pub. L. 113–293, set out as a note under section 3003 of this title. SUBCHAPTER II—PHYSICAL SEARCHES § 1821. Definitions As used in this subchapter: (1) The terms ‘‘foreign power’’, ‘‘agent of a foreign power’’, ‘‘international terrorism’’, ‘‘sabotage’’, ‘‘foreign intelligence informa- tion’’, ‘‘Attorney General’’, ‘‘United States person’’, ‘‘United States’’, ‘‘person’’, ‘‘weapon of mass destruction’’, and ‘‘State’’ shall have the same meanings as in section 1801 of this title, except as specifically provided by this subchapter. (2) ‘‘Aggrieved person’’ means a person whose premises, property, information, or ma- terial is the target of physical search or any other person whose premises, property, infor- mation, or material was subject to physical search. (3) ‘‘Foreign Intelligence Surveillance Court’’ means the court established by section 1803(a) of this title. (4) ‘‘Minimization procedures’’ with respect to physical search, means— (A) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, to minimize the acquisition and re- tention, and prohibit the dissemination, of nonpublicly available information con- cerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; (B) procedures that require that nonpub- licly available information, which is not for- eign intelligence information, as defined in section 1801(e)(1) of this title, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is nec- essary to understand such foreign intel- ligence information or assess its importance; (C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evi- dence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforce- ment purposes; and (D) notwithstanding subparagraphs (A), (B), and (C), with respect to any physical search approved pursuant to section 1822(a) of this title, procedures that require that no information, material, or property of a United States person shall be disclosed, dis- seminated, or used for any purpose or re- tained for longer than 72 hours unless a court order under section 1824 of this title is obtained or unless the Attorney General de- termines that the information indicates a threat of death or serious bodily harm to any person. (5) ‘‘Physical search’’ means any physical in- trusion within the United States into premises or property (including examination of the in- terior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, mate- rial, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not in- clude (A) ‘‘electronic surveillance’’, as defined in section 1801(f) of this title, or (B) the acqui- sition by the United States Government of for- eign intelligence information from inter- national or foreign communications, or for- eign intelligence activities conducted in ac- cordance with otherwise applicable Federal law involving a foreign electronic communica- tions system, utilizing a means other than electronic surveillance as defined in section 1801(f) of this title. (Pub. L. 95–511, title III, § 301, as added Pub. L. 103–359, title VIII, § 807(a)(3), Oct. 14, 1994, 108 Stat. 3443; amended Pub. L. 107–108, title III, § 314(a)(3), Dec. 28, 2001, 115 Stat. 1402; Pub. L. 110–261, title I, § 110(c)(2), July 10, 2008, 122 Stat. 2467; Pub. L. 111–259, title VIII, § 801(4), Oct. 7, 2010, 124 Stat. 2746.) Editorial Notes PRIOR PROVISIONS A prior section 301 of Pub. L. 95–511 was renumbered section 701 and was set out as a note under section 1801 of this title, prior to repeal by Pub. L. 110–261. AMENDMENTS 2010—Par. (1). Pub. L. 111–259 substituted ‘‘ ‘United States’, ‘person’, ‘weapon of mass destruction’, and ‘State’ ’’ for ‘‘ ‘United States’, ‘person’, ‘weapon of mass destruction’, and ‘State’ ’’. 2008—Par. (1). Pub. L. 110–261 which directed the in- sertion of ‘‘weapon of mass destruction,’’ after ‘‘per- son,’’, was executed by making the insertion after ‘‘ ‘person’,’’ to reflect the probable intent of Congress. 2001—Par. (4)(D). Pub. L. 107–108 substituted ‘‘72 hours’’ for ‘‘24 hours’’. 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 Pub. L. 103–359, title VIII, § 807(c), Oct. 14, 1994, 108 Stat. 3453, provided that: ‘‘The amendments made by subsections (a) and (b) [enacting this subchapter and amending provisions set out as a note under section 1801 of this title] shall take effect 90 days after the date of enactment of this Act [Oct. 14, 1994], except that any physical search approved by the Attorney General of the United States to gather foreign intelligence infor- mation shall not be deemed unlawful for failure to fol- low the procedures of title III of the Foreign Intel- ligence Surveillance Act of 1978 [this subchapter] (as added by this Act), if that search is conducted within 180 days after the date of enactment of this Act pursu- ant to regulations issued by the Attorney General, which were in the possession of the Select Committee