50 U.S.C. § 1804 — Applications for court orders

Page 247 TITLE 50—WAR AND NATIONAL DEFENSE § 1804 1 So in original. The word ‘‘and’’ probably should not appear. ‘‘[(b) Repealed. Pub. L. 110–261, title IV, § 403(a)(3), July 10, 2008, 122 Stat. 2474.] ‘‘(c) SUNSET.—Except as provided in subsection (d), sections 2, 3, 4, and 5 of this Act [enacting sections 1805a to 1805c of this title and amending this section], and the amendments made by this Act [enacting sec- tions 1805a to 1805c of this title and amending this sec- tion], shall cease to have effect 195 days after the date of the enactment of this Act. ‘‘(d) AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pur- suant to the amendments made by this Act, and direc- tives issued pursuant to such authorizations, shall re- main in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in sec- tion 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)).’’ [Repeal by Pub. L. 110–261 of section 6(b) of Pub. L. 110–55, set out above, 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 Ef- fective Date of 2008 Amendment note under section 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. MEMBER ACCESS TO THE FOREIGN INTELLIGENCE SUR- VEILLANCE COURT AND FOREIGN INTELLIGENCE SUR- VEILLANCE COURT OF REVIEW Pub. L. 118–49, § 5(d), Apr. 20, 2024, 138 Stat. 870, pro- vided that: ‘‘The chair and ranking minority member of each of the congressional intelligence committees, the chairs and ranking members of the Committees on the Judiciary of the House of Representatives and of the Senate, the Majority and Minority Leaders of the Sen- ate, the Speaker of the House of Representatives, and the Minority Leader of the House of Representatives shall be entitled to attend any proceeding of the For- eign Intelligence Surveillance Court or any proceeding of the Foreign Intelligence Surveillance Court of Re- view. Each person entitled to attend a proceeding pur- suant to this paragraph may designate not more than 2 staff members of such committee or office to attend on their behalf, pursuant to such procedures as the At- torney General, in consultation with the Director of National Intelligence may establish.’’ § 1804. Applications for court orders (a) Submission by Federal officer; approval of At- torney General; contents Each application for an order approving elec- tronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdic- tion under section 1803 of this title. Each appli- cation shall require the approval of the Attor- ney General based upon his finding that it satis- fies the criteria and requirements of such appli- cation as set forth in this subchapter. It shall include— (1) the identity of the Federal officer making the application; (2) the identity, if known, or a description of the specific target of the electronic surveil- lance; (3) a sworn statement of the facts and cir- cumstances relied upon by the applicant to justify his belief that— (A) the target of the electronic surveil- lance is a foreign power or an agent of a for- eign power, and, in the case of a target that is a United States person alleged to be act- ing as an agent of a foreign power (as de- scribed in section 1801(b)(2)(B) of this title), that a violation 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; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a for- eign power or an agent of a foreign power; (4) a statement of the proposed minimization procedures; (5) a description of the nature of the infor- mation sought and the type of communica- tions or activities to be subjected to the sur- veillance; (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 officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Di- rector 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 sur- veillance is to obtain foreign intelligence in- formation; (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) including a statement of the basis for the certification that— (i) the information sought is the type of foreign intelligence information des- ignated; and (ii) such information cannot reasonably be obtained by normal investigative tech- niques; and 1 (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); Page 248 TITLE 50—WAR AND NATIONAL DEFENSE § 1804 2 So in original. The period probably should be ‘‘; and’’. (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, and where applicable, the publisher of that content, information to corroborate that which was derived from the media source, and an explanation of the in- vestigative techniques used to corroborate the information; (7) a summary statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance; (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, facilities, or places specified in the application, and the action taken on each previous application; (9) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the in- telligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically termi- nate when the described type of information has first been obtained, a description of facts supporting the belief that additional informa- tion of the same type will be obtained there- after; and 1 (10) with respect to a target who is a United States person, a statement summarizing the investigative techniques carried out before making the application; (11) in the case of an application for an ex- tension of an order under this subchapter for a surveillance targeted against a United States person, a summary statement of the foreign intelligence information obtained pursuant to the original order (and any preceding exten- sion thereof) as of the date of the application for the extension, or a reasonable explanation of the failure to obtain such information; and 1 (12) a certification by the applicant or de- clarant that, to the best knowledge of the ap- plicant or declarant, the Attorney General or a designated attorney for the Government has been apprised of all information 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 1805(a) of this title.2 (13) 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 1805 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. (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 Page 249 TITLE 50—WAR AND NATIONAL DEFENSE § 1804 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 I, § 104, Oct. 25, 1978, 92 Stat. 1788; Pub. L. 106–567, title VI, § 602(a), Dec. 27, 2000, 114 Stat. 2851; 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. 109–177, title I, § 108(a)(1), Mar. 9, 2006, 120 Stat. 203; Pub. L. 110–261, title I, § 104, July 10, 2008, 122 Stat. 2460; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748; Pub. L. 118–49, §§ 6(a)(1), (b)(1), (c)(1), (d)(1), (e)(1), (f)(1), 10(a)(1), (b)(1), Apr. 20, 2024, 138 Stat. 870–873, 875, 877.) Editorial Notes AMENDMENTS 2024—Subsec. (a)(3). Pub. L. 118–49, § 6(a)(1), sub- stituted ‘‘a sworn statement of’’ for ‘‘a statement of’’ in introductory provisions. Subsec. (a)(3)(A). Pub. L. 118–49, § 6(f)(1), inserted ‘‘, 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 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’’ after ‘‘an agent of a foreign power’’. Subsec. (a)(6)(F). Pub. L. 118–49, § 6(b)(1), added sub- par. (F). Subsec. (a)(6)(G). Pub. L. 118–49, § 6(c)(1), added sub- par. (G). Subsec. (a)(10). Pub. L. 118–49, § 6(d)(1), added par. (10). Subsec. (a)(11). Pub. L. 118–49, § 6(e)(1), added par. (11). Subsec. (a)(12). Pub. L. 118–49, § 10(a)(1), added par. (12). Subsec. (a)(13). Pub. L. 118–49, § 10(b)(1), added par. (13). 2010—Subsec. (e)(1)(A). Pub. L. 111–259 made technical amendment to directory language of Pub. L. 108–458, § 1071(e). See 2004 Amendment note below. 2008—Subsec. (a)(2) to (4). Pub. L. 110–261, § 104(1)(A), (B), redesignated pars. (3) to (5) as (2) to (4), respec- tively, and struck out former par. (2) which read as fol- lows: ‘‘the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;’’. Subsec. (a)(5). Pub. L. 110–261, § 104(1)(B), (C), redesig- nated par. (6) as (5) and struck out ‘‘detailed’’ before ‘‘description’’. Former par. (5) redesignated (4). Subsec. (a)(6). Pub. L. 110–261, § 104(1)(B), (D), redesig- nated par. (7) as (6) and substituted ‘‘Affairs,’’ for ‘‘Af- fairs 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). Pub. L. 110–261, § 104(1)(B), (E), redesig- nated par. (8) as (7) and substituted ‘‘summary state- ment of’’ for ‘‘statement of’’. Former par. (7) redesig- nated (6). Subsec. (a)(8) to (11). Pub. L. 110–261, § 104(1)(A), (B), redesignated pars. (9) and (10) as (8) and (9), respec- tively, and struck out par. (11) which read as follows: ‘‘whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the cov- erage of the devices involved and what minimization procedures apply to information acquired by each de- vice.’’ Former par. (8) redesignated (7). Subsecs. (b) to (e). Pub. L. 110–261, § 104(2)–(4), redesig- nated subsecs. (c) to (e) as (b) to (d), respectively, in subsec. (d)(1)(A) substituted ‘‘the Director of National Intelligence, or the Director of the Central Intelligence Agency’’ for ‘‘or the Director of National Intelligence’’, and struck out former subsec. (b) which related to ex- clusion of certain information respecting foreign power targets. 2006—Subsec. (a)(3). Pub. L. 109–177 inserted ‘‘spe- cific’’ before ‘‘target’’. 2004—Subsec. (e)(1)(A). Pub. L. 108–458, § 1071(e), as amended by Pub. L. 111–259, substituted ‘‘Director of National Intelligence’’ for ‘‘Director of Central Intel- ligence’’. 2001—Subsec. (a)(7)(B). Pub. L. 107–56 substituted ‘‘a significant purpose’’ for ‘‘the purpose’’. 2000—Subsec. (e). Pub. L. 106–567 added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2024 AMENDMENT Pub. L. 118–49, § 6(a)(5), Apr. 20, 2024, 138 Stat. 870, pro- vided that: ‘‘The amendments made by this subsection [amending this section and sections 1823, 1881b, and 1881c of this title] shall apply with respect to applica- tions made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].’’ Pub. L. 118–49, § 6(b)(3), Apr. 20, 2024, 138 Stat. 871, pro- vided that: ‘‘The amendments made by this subsection [amending this section and section 1823 of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enact- ment of this Act [Apr. 20, 2024].’’ Pub. L. 118–49, § 6(c)(3), Apr. 20, 2024, 138 Stat. 872, pro- vided that: ‘‘The amendments made by this subsection [amending this section and section 1823 of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enact- ment of this Act [Apr. 20, 2024].’’ Pub. L. 118–49, § 6(d)(2), Apr. 20, 2024, 138 Stat. 872, pro- vided that: ‘‘The amendments made by this subsection [amending this section] shall apply with respect to ap- plications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].’’ Pub. L. 118–49, § 6(e)(3), Apr. 20, 2024, 138 Stat. 873, pro- vided that: ‘‘The amendments made by this subsection [amending this section and section 1823 of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enact- ment of this Act [Apr. 20, 2024].’’ Pub. L. 118–49, § 6(f)(3), Apr. 20, 2024, 138 Stat. 873, pro- vided that: ‘‘The amendments made by this subsection [amending this section and section 1823 of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enact- ment of this Act [Apr. 20, 2024].’’ Pub. L. 118–49, § 10(a)(6), Apr. 20, 2024, 138 Stat. 877, provided that: ‘‘The amendments made by this sub- section [amending this section and sections 1823, 1842, 1862, 1881b, and 1881c of this title] shall apply with re- spect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].’’ Pub. L. 118–49, § 10(b)(6), Apr. 20, 2024, 138 Stat. 878, provided that: ‘‘The amendments made by this sub- section [amending this section and sections 1823, 1842, 1862, 1881b, and 1881c of this title] shall apply with re- spect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].’’ 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, Page 250 TITLE 50—WAR AND NATIONAL DEFENSE § 1805 1 See References in Text note below. 2 So in original. 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. ACCURACY PROCEDURES Pub. L. 118–49, § 10(a)(7), Apr. 20, 2024, 138 Stat. 877, provided that: ‘‘Not later than 180 days after the date of the enactment of this Act [Apr. 20, 2024], the Attor- ney General, in consultation with the Director of the Federal Bureau of Investigation, shall issue procedures governing the review of case files, as appropriate, to en- sure that applications to the Foreign Intelligence Sur- veillance Court under title I or III of the Foreign Intel- ligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.[, 1821 et seq.]) that target United States persons are ac- curate and complete.’’ Executive Documents DESIGNATION OF CERTAIN OFFICIALS TO MAKE CERTIFICATIONS For designation of certain officials to make certifi- cations required by subsec. (a)(7) of this section, see Ex. Ord. No. 12139, May 23, 1979, 44 F.R. 30311, set out under section 1802 of this title. § 1805. Issuance of order (a) Necessary findings Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approv- ing the electronic surveillance if he 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 electronic surveil- lance is a foreign power or an agent of a for- eign power: Provided, That no United States person may be considered a foreign power or 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) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a for- eign power or an agent of a foreign power; (3) the proposed minimization procedures meet the definition of minimization proce- dures under section 1801(h) of this title; and (4) the application which has been filed con- tains all statements and certifications re- quired by section 1804 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 1804(a)(7)(E) 1 of this title and any other information furnished under section 1804(d) 1 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 (1) SPECIFICATIONS.— An order approving an electronic surveil- lance under this section shall specify— (A) the identity, if known, or a description of the specific target of the electronic sur- veillance identified or described in the appli- cation pursuant to section 1804(a)(3) of this title; (B) the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known; (C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveil- lance; (D) the means by which the electronic sur- veillance will be effected and whether phys- ical entry will be used to effect the surveil- lance; and (E) the period of time during which the electronic surveillance is approved. (2) direct— 2 (A) that the minimization procedures be fol- lowed; (B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all in- formation, facilities, or technical assistance necessary to accomplish the electronic sur- veillance in such a manner as will protect its secrecy and produce a minimum of inter- ference with the services that such carrier, landlord, custodian, or other person is pro- viding that target of electronic surveillance; (C) that such carrier, landlord, custodian, or other person maintain under security proce- dures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and (D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custo- dian, or other person for furnishing such aid. (3) SPECIAL DIRECTIONS FOR CERTAIN ORDERS.— An order approving an electronic surveil- lance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to jus- tify a longer period of up to 60 days, of— (A) the nature and location of each new fa- cility or place at which the electronic sur- veillance is directed; (B) the facts and circumstances relied upon by the applicant to justify the appli- cant’s belief that each new facility or place at which the electronic surveillance is di-