50 U.S.C. § 1802 — Untitled legal text

Page 241 TITLE 50—WAR AND NATIONAL DEFENSE § 1802 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)— ‘‘(A) section 103(e) of such Act [50 U.S.C. 1803(e)], as amended by section 403(a)(1)(B)(ii), shall con- tinue to apply with respect to any directive issued pursuant to section 702(i) of such Act [50 U.S.C. 1881a(i)], as added by section 101(a); ‘‘(B) section 702(i)(3) of such Act (as so added) shall continue to apply with respect to any direc- tive issued pursuant to section 702(i) of such Act (as so added); ‘‘(C) section 703(e) of such Act [50 U.S.C. 1881b(e)] (as so added) shall continue to apply with respect to an order or request for emergency assistance under that section; ‘‘(D) section 706 of such Act [50 U.S.C. 1881e] (as so added) shall continue to apply to an acquisition conducted under section 702 or 703 of such Act (as so added); and ‘‘(E) section 2511(2)(a)(ii)(A) of title 18, United States Code, as amended by section 101(c)(1), shall continue to apply to an order issued pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978, [50 U.S.C. 1881c] as added by section 101(a). ‘‘(4) REPORTING REQUIREMENTS.— ‘‘(A) CONTINUED APPLICABILITY.—Notwithstanding any other provision of this Act or of the Foreign In- telligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 601(a) of such Act (50 U.S.C. 1871(a)), as amended by section 101(c)(2), and sections 702(m) and 707 of such Act, [50 U.S.C. 1881a(m), 1881f] as added by section 101(a) and amended by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, shall continue to apply until the date that the cer- tification described in subparagraph (B) is sub- mitted. ‘‘(B) CERTIFICATION.—The certification described in this subparagraph is a certification— ‘‘(i) made by the Attorney General; ‘‘(ii) submitted to the Select Committee on In- telligence of the Senate, the Permanent Select Committee on Intelligence of the House of Rep- resentatives, and the Committees on the Judici- ary of the Senate and the House of Representa- tives; ‘‘(iii) that states that there will be no further acquisitions carried out under title VII of the Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. 1881 et seq.], as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, after the date of such cer- tification; and ‘‘(iv) that states that the information required to be included in a review, assessment, or report under section 601 of such Act [50 U.S.C. 1871], as amended by section 101(c), or section 702(m) or 707 of such Act, as added by section 101(a) and amend- ed by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Secur- ing America Act, relating to any acquisition con- ducted under title VII of such Act, as amended by section 101(a) and by the FISA Amendments Re- authorization Act of 2017 and the Reforming In- telligence and Securing America Act, has been in- cluded in a review, assessment, or report under such section 601, 702(l) [now 702(m)], or 707. ‘‘(5) TRANSITION PROCEDURES CONCERNING THE TAR- GETING OF UNITED STATES PERSONS OVERSEAS.—Any authorization in effect on the date of enactment of this Act [July 10, 2008] under section 2.5 of Executive Order 12333 [50 U.S.C. 3001 note] to intentionally tar- get a United States person reasonably believed to be located outside the United States shall continue in effect, and shall constitute a sufficient basis for con- ducting such an acquisition targeting a United States person located outside the United States until the earlier of— ‘‘(A) the date that authorization expires; or ‘‘(B) the date that is 90 days after the date of the enactment of this Act [July 10, 2008].’’ Executive Documents TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Is- lands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. § 1802. Electronic surveillance authorization without court order; certification by Attor- ney General; reports to Congressional com- mittees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court (a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire for- eign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that— (A) the electronic surveillance is solely di- rected at— (i) the acquisition of the contents of com- munications transmitted by means of com- munications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or (ii) the acquisition of technical intel- ligence, other than the spoken communica- tions of individuals, from property or prem- ises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and (C) the proposed minimization procedures with respect to such surveillance meet the def- inition of minimization procedures under sec- tion 1801(h) of this title; and if the Attorney General reports such minimiza- tion procedures and any changes thereto to the House Permanent Select Committee on Intel- ligence and the Senate Select Committee on In- telligence at least thirty days prior to their ef- fective date, unless the Attorney General deter- mines immediate action is required and notifies the committees immediately of such minimiza- tion procedures and the reason for their becom- ing effective immediately. (2) An electronic surveillance authorized by this subsection may be conducted only in ac- cordance with the Attorney General’s certifi- cation and the minimization procedures adopted by him. The Attorney General shall assess com- pliance with such procedures and shall report such assessments to the House Permanent Se- lect Committee on Intelligence and the Senate Select Committee on Intelligence under the pro- visions of section 1808(a) of this title. (3) The Attorney General shall immediately transmit under seal to the court established under section 1803(a) of this title a copy of his certification. Such certification shall be main- tained under security measures established by Page 242 TITLE 50—WAR AND NATIONAL DEFENSE § 1803 the Chief Justice 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 surveillance is made under sec- tions 1801(h)(4) and 1804 of this title; or (B) the certification is necessary to deter- mine the legality of the surveillance under section 1806(f) of this title. (4) With respect to electronic surveillance au- thorized by this subsection, the Attorney Gen- eral may direct a specified communication com- mon carrier to— (A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a min- imum of interference with the services that such carrier is providing its customers; and (B) maintain under security procedures ap- proved by the Attorney General and the Direc- tor of National Intelligence any records con- cerning the surveillance or the aid furnished which such carrier wishes to retain. The Government shall compensate, at the pre- vailing rate, such carrier for furnishing such aid. (b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attor- ney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as de- scribed in paragraph (1)(A) of subsection (a) un- less such surveillance may involve the acquisi- tion of communications of any United States person. (Pub. L. 95–511, title I, § 102, Oct. 25, 1978, 92 Stat. 1786; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748.) Editorial Notes AMENDMENTS 2010—Subsec. (a)(3), (4)(B). Pub. L. 111–259 made tech- nical amendment to directory language of Pub. L. 108–458. See 2004 Amendment note below. 2004—Subsec. (a)(3), (4)(B). Pub. L. 108–458, as amend- ed by Pub. L. 111–259, substituted ‘‘Director of National Intelligence’’ for ‘‘Director of Central Intelligence’’. Statutory Notes and Related Subsidiaries 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. Executive Documents EX. ORD. NO. 12139. EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE Ex. Ord. No. 12139, May 23, 1979, 44 F.R. 30311, as amended by Ex. Ord. No. 13383, § 1, July 15, 2005, 70 F.R. 41933; Ex. Ord. No. 13475, § 1, Oct. 7, 2008, 73 F.R. 60095, provided: By the authority vested in me as President by Sec- tions 102 and 104 of the Foreign Intelligence Surveil- lance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act [this chapter] for the authorization of electronic surveillance for foreign in- telligence purposes, it is hereby ordered as follows: 1–101. Pursuant to Section 102(a)(1) of the Foreign In- telligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve elec- tronic surveillance to acquire foreign intelligence in- formation without a court order, but only if the Attor- ney General makes the certifications required by that Section. 1–102. Pursuant to Section 102(b) of the Foreign Intel- ligence Act of 1978 (50 U.S.C. 1802(b)), the Attorney Gen- eral is authorized to approve applications to the court having jurisdiction under Section 103 of that Act [50 U.S.C. 1803] to obtain orders for electronic surveillance for the purpose of obtaining foreign intelligence infor- mation. 1–103. Pursuant to Section 104(a)(6) of the Foreign In- telligence Surveillance Act of 1978 (50 U.S.C. 1804(a)(6)), 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 104(a)(6) of the Act in support of applications to conduct electronic surveillance: (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. (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 with the advice and consent of the Senate. The requirement of the preceding sen- tence that the named official must be appointed by the President with the advice and consent of the Senate does not apply to the Deputy Director of the Federal Bureau of Investigation. [1–104, 1–105. Amended Ex. Ord. No. 12036, formerly set out under section 401 (now 3001) of this title.] § 1803. Designation of judges (a) Court to hear applications and grant orders; record of denial; transmittal to court of re- view (1) The Chief Justice of the United States shall publicly designate 11 district court judges from at least seven of the United States judicial cir- cuits of whom no fewer than 3 shall reside with- in 20 miles of the District of Columbia who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approv- ing electronic surveillance anywhere within the United States under the procedures set forth in this chapter, except that no judge designated