50 U.S.C. § 1881b — Certain acquisitions inside the United

Page 300 TITLE 50—WAR AND NATIONAL DEFENSE § 1881b and provided for a 30-day congressional review period and exception for emergency acquisition, was repealed by Pub. L. 118–49, § 22(b)(2)(A), Apr. 20, 2024, 138 Stat. 892. § 1881b. Certain acquisitions inside the United States targeting United States persons out- side the United States (a) Jurisdiction of the Foreign Intelligence Sur- veillance Court (1) In general The Foreign Intelligence Surveillance Court shall have jurisdiction to review an applica- tion and to enter an order approving the tar- geting of a United States person reasonably believed to be located outside the United States to acquire foreign intelligence informa- tion, if the acquisition constitutes electronic surveillance or the acquisition of stored elec- tronic communications or stored electronic data that requires an order under this chapter, and such acquisition is conducted within the United States. (2) Limitation If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective pe- riod of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located out- side the United States while an order issued pursuant to subsection (c) is in effect. Nothing in this section shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other subchapter of this chapter. (b) Application (1) In general Each application for an order under this sec- tion shall be made by a Federal officer in writ- ing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each ap- plication shall require the approval of the At- torney General based upon the Attorney Gen- eral’s finding that it satisfies the criteria and requirements of such application, as set forth in this section, and shall include— (A) the identity of the Federal officer making the application; (B) the identity, if known, or a description of the United States person who is the target of the acquisition; (C) a sworn statement of the facts and cir- cumstances relied upon to justify the appli- cant’s belief that the United States person who is the target of the acquisition is— (i) a person reasonably believed to be lo- cated outside the United States; and (ii) a foreign power, an agent of a foreign power, or an officer or employee of a for- eign power; (D) a statement of proposed minimization procedures that meet the definition of mini- mization procedures under section 1801(h) or 1821(4) of this title, as appropriate; (E) a description of the nature of the infor- mation sought and the type of communica- tions or activities to be subjected to acquisi- tion; (F) a certification made by the Attorney General or an official specified in section 1804(a)(6) of this title that— (i) the certifying official deems the in- formation sought to be foreign intelligence information; (ii) a significant purpose of the acquisi- tion is to obtain foreign intelligence infor- mation; (iii) such information cannot reasonably be obtained by normal investigative tech- niques; (iv) designates the type of foreign intel- ligence information being sought accord- ing to the categories described in section 1801(e) of this title; and (v) includes 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 reason- ably be obtained by normal investigative techniques; (G) a summary statement of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition; (H) the identity of any electronic commu- nication service provider necessary to effect the acquisition, provided that the applica- tion is not required to identify the specific facilities, places, premises, or property at which the acquisition authorized under this section will be directed or conducted; (I) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Sur- veillance Court involving the United States person specified in the application and the action taken on each previous application; (J) a statement of the period of time for which the acquisition is required to be main- tained, provided that such period of time shall not exceed 90 days per application; (K) a certification by the applicant that, to the best knowledge of the applicant, the Attorney General or a designated attorney for the Government has been apprised of 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 (L) non-cumulative information known to the applicant or declarant that is poten- tially exculpatory regarding the requested legal findings or any assessment in the ap- plication. (2) Other requirements of the Attorney General The Attorney General may require any other affidavit or certification from any other offi- cer in connection with the application. Page 301 TITLE 50—WAR AND NATIONAL DEFENSE § 1881b (3) Other requirements of the judge The judge may require the applicant to fur- nish such other information as may be nec- essary to make the findings required by sub- section (c)(1). (c) Order (1) Findings Upon an application made pursuant to sub- section (b), the Foreign Intelligence Surveil- lance Court shall enter an ex parte order as re- quested or as modified by the Court approving the acquisition if the Court finds that— (A) the application has been made by a Federal officer and approved by the Attor- ney General; (B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is— (i) a person reasonably believed to be lo- cated outside the United States; and (ii) a foreign power, an agent of a foreign power, or an officer or employee of a for- eign power; (C) the proposed minimization procedures meet the definition of minimization proce- dures under section 1801(h) or 1821(4) of this title, as appropriate; and (D) the application that has been filed con- tains all statements and certifications re- quired by subsection (b) and the certifi- cation or certifications are not clearly erro- neous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3). (2) Probable cause In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the tar- get and facts and circumstances relating to current or future activities of the target. No United States person may be considered a for- eign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States. (3) Review (A) Limitation on review Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1). (B) Review of probable cause If the judge determines that the facts sub- mitted under subsection (b) are insufficient to establish probable cause under paragraph (1)(B), the judge shall enter an order so stat- ing and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f). (C) Review of minimization procedures If the judge determines that the proposed minimization procedures referred to in para- graph (1)(C) do not meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Gov- ernment may appeal an order under this sub- paragraph pursuant to subsection (f). (D) Review of certification If the judge determines that an application pursuant to subsection (b) does not contain all of the required elements, or that the cer- tification or certifications are clearly erro- neous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3), the judge shall enter an order so stat- ing and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f). (4) Specifications An order approving an acquisition under this subsection shall specify— (A) the identity, if known, or a description of the United States person who is the target of the acquisition identified or described in the application pursuant to subsection (b)(1)(B); (B) if provided in the application pursuant to subsection (b)(1)(H), the nature and loca- tion of each of the facilities or places at which the acquisition will be directed; (C) the nature of the information sought to be acquired and the type of communications or activities to be subjected to acquisition; (D) a summary of the means by which the acquisition will be conducted and whether physical entry is required to effect the ac- quisition; and (E) the period of time during which the ac- quisition is approved. (5) Directives An order approving an acquisition under this subsection shall direct— (A) that the minimization procedures re- ferred to in paragraph (1)(C), as approved or modified by the Court, be followed; (B) if applicable, an electronic communica- tion service provider to provide to the Gov- ernment forthwith all information, facili- ties, or assistance necessary to accomplish the acquisition authorized under such order in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; (C) if applicable, an electronic communica- tion service provider to maintain under se- curity procedures approved by the Attorney General any records concerning the acquisi- tion or the aid furnished that such elec- tronic communication service provider wish- es to maintain; and (D) if applicable, that the Government compensate, at the prevailing rate, such electronic communication service provider for providing such information, facilities, or assistance. Page 302 TITLE 50—WAR AND NATIONAL DEFENSE § 1881b (6) Duration An order approved under this subsection shall be effective for a period not to exceed 90 days and such order may be renewed for addi- tional 90-day periods upon submission of re- newal applications meeting the requirements of subsection (b). (7) Compliance At or prior to the end of the period of time for which an acquisition is approved by an order or extension under this section, the judge may assess compliance with the mini- mization procedures referred to in paragraph (1)(C) by reviewing the circumstances under which information concerning United States persons was acquired, retained, or dissemi- nated. (d) Emergency authorization (1) Authority for emergency authorization Notwithstanding any other provision of this chapter, if the Attorney General reasonably determines that— (A) an emergency situation exists with re- spect to the acquisition of foreign intel- ligence information for which an order may be obtained under subsection (c) before an order authorizing such acquisition can with due diligence be obtained, and (B) the factual basis for issuance of an order under this subsection to approve such acquisition exists, the Attorney General may authorize such ac- quisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General, or a designee of the Attorney Gen- eral, at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the For- eign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition. (2) Minimization procedures If the Attorney General authorizes an acqui- sition under paragraph (1), the Attorney Gen- eral shall require that the minimization proce- dures referred to in subsection (c)(1)(C) for the issuance of a judicial order be followed. (3) Termination of emergency authorization In the absence of a judicial order approving an acquisition under paragraph (1), such acqui- sition shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest. (4) Use of information If an application for approval submitted pur- suant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order is issued approving the acquisi- tion, no information obtained or evidence de- rived from such acquisition, except under cir- cumstances in which the target of the acquisi- tion is determined not to be a United States person, shall be received in evidence or other- wise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political sub- division thereof, and no information con- cerning any United States person acquired from such acquisition shall subsequently be used or disclosed in any other manner by Fed- eral officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. (e) Release from liability No cause of action shall lie in any court against any electronic communication service provider for providing any information, facili- ties, or assistance in accordance with an order or request for emergency assistance issued pur- suant to subsection (c) or (d), respectively. (f) Appeal (1) Appeal to the Foreign Intelligence Surveil- lance Court of Review The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph. (2) Certiorari to the Supreme Court The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be trans- mitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision. (g) Construction Except as provided in this section, nothing in this chapter shall be construed to require an ap- plication for a court order for an acquisition that is targeted in accordance with this section at a United States person reasonably believed to be located outside the United States. (Pub. L. 95–511, title VII, § 703, as added Pub. L. 110–261, title I, § 101(a)(2), July 10, 2008, 122 Stat. 2448; amended Pub. L. 118–49, §§ 6(a)(3), 10(a)(5)(A), (b)(5)(A), Apr. 20, 2024, 138 Stat. 870, 876, 878.) REPEAL OF SECTION Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, except as provided in section 404 of Pub. L. 110–261, set out as a note under section 1801 of this title, effective two years after Apr. 20, 2024, this section is repealed. Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (d)(1), and (g), was in the original ‘‘this Act’’, meaning Pub. L. Page 303 TITLE 50—WAR AND NATIONAL DEFENSE § 1881c 95–511, Oct. 25, 1978, 92 Stat. 1783, known as the Foreign Intelligence Surveillance 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. AMENDMENTS 2024—Subsec. (b)(1)(C). Pub. L. 118–49, § 6(a)(3), sub- stituted ‘‘a sworn statement of’’ for ‘‘a statement of’’ in introductory provisions. Subsec. (b)(1)(K). Pub. L. 118–49, § 10(a)(5)(A), added subpar. (K). Subsec. (b)(1)(L). Pub. L. 118–49, § 10(b)(5)(A), added subpar. (L). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2024 AMENDMENT Amendment by section 6(a)(3) 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 10(a)(5)(A) of Pub. L. 118–49 applicable 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)(5)(A) of Pub. L. 118–49 applicable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(b)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. EFFECTIVE DATE OF REPEAL Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, ex- cept as provided in section 404 of Pub. L. 110–261, set out as a Transition Procedures note under section 1801 of this title, the repeals made by section 403(b)(1) are ef- fective two years after Apr. 20, 2024. § 1881c. Other acquisitions targeting United States persons outside the United States (a) Jurisdiction and scope (1) Jurisdiction The Foreign Intelligence Surveillance Court shall have jurisdiction to enter an order pur- suant to subsection (c). (2) Scope No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under cir- cumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the At- torney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this chapter. (3) Limitations (A) Moving or misidentified targets If a United States person targeted under this subsection is reasonably believed to be located in the United States during the ef- fective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States per- son is again reasonably believed to be lo- cated outside the United States during the effective period of such order. (B) Applicability If an acquisition for foreign intelligence purposes is to be conducted inside the United States and could be authorized under section 1881b of this title, the acquisition may only be conducted if authorized under section 1881b of this title or in accordance with another provision of this chapter other than this section. (C) Construction Nothing in this paragraph shall be con- strued to limit the authority of the Govern- ment to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other sub- chapter of this chapter. (b) Application Each application for an order under this sec- tion shall be made by a Federal officer in writ- ing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each appli- cation shall require the approval of the Attor- ney General based upon the Attorney General’s finding that it satisfies the criteria and require- ments of such application as set forth in this section and shall include— (1) the identity of the Federal officer making the application; (2) the identity, if known, or a description of the specific United States person who is the target of the acquisition; (3) a sworn statement of the facts and cir- cumstances relied upon to justify the appli- cant’s belief that the United States person who is the target of the acquisition is— (A) a person reasonably believed to be lo- cated outside the United States; and (B) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power; (4) a statement of proposed minimization procedures that meet the definition of mini- mization procedures under section 1801(h) or 1821(4) of this title, as appropriate; (5) a certification made by the Attorney General, an official specified in section 1804(a)(6) of this title, or the head of an ele- ment of the intelligence community that— (A) the certifying official deems the infor- mation sought to be foreign intelligence in- formation; and (B) a significant purpose of the acquisition is to obtain foreign intelligence information; (6) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveil- lance Court involving the United States per- son specified in the application and the action taken on each previous application; (7) a statement of the period of time for which the acquisition is required to be main-