50 U.S.C. § 3040 — Disclosure of foreign intelligence ac-

Page 630 TITLE 50—WAR AND NATIONAL DEFENSE § 3040 Such elements may collect such information notwithstanding that the law enforcement agen- cy intends to use the information collected for purposes of a law enforcement investigation or counterintelligence investigation. (b) Limitation on assistance by elements of De- partment of Defense (1) With respect to elements within the De- partment of Defense, the authority in sub- section (a) applies only to the following: (A) The National Security Agency. (B) The National Reconnaissance Office. (C) The National Geospatial-Intelligence Agency. (D) The Defense Intelligence Agency. (2) Assistance provided under this section by elements of the Department of Defense may not include the direct participation of a member of the Army, Navy, Air Force, or Marine Corps in an arrest or similar activity. (3) Assistance may not be provided under this section by an element of the Department of De- fense if the provision of such assistance will ad- versely affect the military preparedness of the United States. (4) The Secretary of Defense shall prescribe regulations governing the exercise of authority under this section by elements of the Depart- ment of Defense, including regulations relating to the protection of sources and methods in the exercise of such authority. (c) Definitions For purposes of subsection (a): (1) The term ‘‘United States law enforce- ment agency’’ means any department or agen- cy of the Federal Government that the Attor- ney General designates as law enforcement agency for purposes of this section. (2) The term ‘‘United States person’’ means the following: (A) A United States citizen. (B) An alien known by the intelligence agency concerned to be a permanent resi- dent alien. (C) An unincorporated association substan- tially composed of United States citizens or permanent resident aliens. (D) A corporation incorporated in the United States, except for a corporation di- rected and controlled by a foreign govern- ment or governments. (July 26, 1947, ch. 343, title I, § 105A, as added Pub. L. 104–293, title VIII, § 814(a), Oct. 11, 1996, 110 Stat. 3483; amended Pub. L. 108–136, div. A, title IX, § 921(e)(3), Nov. 24, 2003, 117 Stat. 1569.) Editorial Notes CODIFICATION Section was formerly classified to section 403–5a of this title prior to editorial reclassification and renum- bering as this section. AMENDMENTS 2003—Subsec. (b)(1)(C). Pub. L. 108–136 substituted ‘‘National Geospatial-Intelligence Agency’’ for ‘‘Na- tional Imagery and Mapping Agency’’. § 3040. Disclosure of foreign intelligence ac- quired in criminal investigations; notice of criminal investigations of foreign intel- ligence sources (a) Disclosure of foreign intelligence (1) Except as otherwise provided by law and subject to paragraph (2), the Attorney General, or the head of any other department or agency of the Federal Government with law enforce- ment responsibilities, shall expeditiously dis- close to the Director of National Intelligence, pursuant to guidelines developed by the Attor- ney General in consultation with the Director, foreign intelligence acquired by an element of the Department of Justice or an element of such department or agency, as the case may be, in the course of a criminal investigation. (2) The Attorney General by regulation and in consultation with the Director may provide for exceptions to the applicability of paragraph (1) for one or more classes of foreign intelligence, or foreign intelligence with respect to one or more targets or matters, if the Attorney Gen- eral determines that disclosure of such foreign intelligence under that paragraph would jeop- ardize an ongoing law enforcement investigation or impair other significant law enforcement in- terests. (b) Procedures for notice of criminal investiga- tions Not later than 180 days after October 26, 2001, the Attorney General, in consultation with the Director of National Intelligence, shall develop guidelines to ensure that after receipt of a re- port from an element of the intelligence com- munity of activity of a foreign intelligence source or potential foreign intelligence source that may warrant investigation as criminal ac- tivity, the Attorney General provides notice to the Director, within a reasonable period of time, of his intention to commence, or decline to com- mence, a criminal investigation of such activity. (c) Procedures The Attorney General shall develop proce- dures for the administration of this section, in- cluding the disclosure of foreign intelligence by elements of the Department of Justice, and ele- ments of other departments and agencies of the Federal Government, under subsection (a) and the provision of notice with respect to criminal investigations under subsection (b). (July 26, 1947, ch. 343, title I, § 105B, as added Pub. L. 107–56, title IX, § 905(a)(2), Oct. 26, 2001, 115 Stat. 388; amended Pub. L. 108–458, title I, § 1071(a)(1)(G), (H), (2)(B), (C), Dec. 17, 2004, 118 Stat. 3689, 3690.) Editorial Notes CODIFICATION Section was formerly classified to section 403–5b of this title prior to editorial reclassification and renum- bering as this section. PRIOR PROVISIONS A prior section 105B of act July 26, 1947, ch. 343, title I, as added Pub. L. 106–120, title V, § 501(a)(1), Dec. 3, 1999, 113 Stat. 1616, which related to protection of oper- ational files of the National Imagery and Mapping Page 631 TITLE 50—WAR AND NATIONAL DEFENSE § 3041 Agency, was renumbered by subsequent acts and trans- ferred. See section 3142 of this title. AMENDMENTS 2004—Subsec. (a)(1). Pub. L. 108–458, § 1071(a)(1)(G), substituted ‘‘Director of National Intelligence’’ for ‘‘Di- rector of Central Intelligence’’. Subsec. (a)(2). Pub. L. 108–458, § 1071(a)(2)(B), struck out ‘‘of Central Intelligence’’ after ‘‘Director’’. Subsec. (b). Pub. L. 108–458, § 1071(a)(2)(C), struck out ‘‘of Central Intelligence’’ after ‘‘notice to the Direc- tor’’. Pub. L. 108–458, § 1071(a)(1)(H), substituted ‘‘with the Director of National Intelligence’’ for ‘‘with the Direc- tor 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. § 3040a. Prohibition on collection and mainte- nance of information of United States per- sons based on first amendment-protected ac- tivities No element of the intelligence community may collect or maintain information concerning a United States person (as defined in section 3039 of this title) solely for the purpose of moni- toring an activity protected by the first amend- ment to the Constitution of the United States. (July 26, 1947, ch. 343, title I, § 105C, as added Pub. L. 117–103, div. X, title III, § 303, Mar. 15, 2022, 136 Stat. 965.) § 3041. Appointment of officials responsible for intelligence-related activities (a) Recommendation of DNI in certain appoint- ments (1) In the event of a vacancy in a position re- ferred to in paragraph (2), the Director of Na- tional Intelligence shall recommend to the President an individual for nomination to fill the vacancy. (2) Paragraph (1) applies to the following posi- tions: (A) The Principal Deputy Director of Na- tional Intelligence. (B) The Director of the Central Intelligence Agency. (b) Concurrence of DNI in appointments to posi- tions in the intelligence community (1) In the event of a vacancy in a position re- ferred to in paragraph (2), the head of the de- partment or agency having jurisdiction over the position shall obtain the concurrence of the Di- rector of National Intelligence before appointing an individual to fill the vacancy or recom- mending to the President an individual to be nominated to fill the vacancy. If the Director does not concur in the recommendation, the head of the department or agency concerned may not fill the vacancy or make the rec- ommendation to the President (as the case may be). In the case in which the Director does not concur in such a recommendation, the Director and the head of the department or agency con- cerned may advise the President directly of the intention to withhold concurrence or to make a recommendation, as the case may be. (2) Paragraph (1) applies to the following posi- tions: (A) The Director of the National Security Agency. (B) The Director of the National Reconnais- sance Office. (C) The Director of the National Geospatial- Intelligence Agency. (D) The Assistant Secretary of State for In- telligence and Research. (E) The Director of the Office of Intelligence and Counterintelligence of the Department of Energy. (F) The Assistant Secretary for Intelligence and Analysis of the Department of the Treas- ury. (G) The Executive Assistant Director for In- telligence of the Federal Bureau of Investiga- tion or any successor to that position. (H) The Under Secretary of Homeland Secu- rity for Intelligence and Analysis. (c) Consultation with DNI in certain positions (1) In the event of a vacancy in a position re- ferred to in paragraph (2), the head of the de- partment or agency having jurisdiction over the position shall consult with the Director of Na- tional Intelligence before appointing an indi- vidual to fill the vacancy or recommending to the President an individual to be nominated to fill the vacancy. (2) Paragraph (1) applies to the following posi- tions: (A) The Director of the Defense Intelligence Agency. (B) The Assistant Commandant of the Coast Guard for Intelligence. (C) The Assistant Attorney General des- ignated as the Assistant Attorney General for National Security under section 507A of title 28. (July 26, 1947, ch. 343, title I, § 106, as added Pub. L. 102–496, title VII, § 706(a), Oct. 24, 1992, 106 Stat. 3195; amended Pub. L. 103–359, title V, § 501(a)(3), Oct. 14, 1994, 108 Stat. 3428; Pub. L. 104–293, title VIII, § 815(a), Oct. 11, 1996, 110 Stat. 3484; Pub. L. 107–108, title III, § 308, Dec. 28, 2001, 115 Stat. 1399; Pub. L. 108–136, div. A, title IX, § 921(e)(5), Nov. 24, 2003, 117 Stat. 1569; Pub. L. 108–177, title I, § 105(c), Dec. 13, 2003, 117 Stat. 2603; Pub. L. 108–458, title I, § 1014, Dec. 17, 2004, 118 Stat. 3663; Pub. L. 109–177, title V, § 506(a)(4), Mar. 9, 2006, 120 Stat. 247; Pub. L. 110–53, title V, § 531(b)(5), Aug. 3, 2007, 121 Stat. 334; Pub. L. 116–92, div. E, title LXVII, §§ 6742(b)(2), 6744(c), Dec. 20, 2019, 133 Stat. 2239, 2241.) Editorial Notes CODIFICATION Section was formerly classified to section 403–6 of this title prior to editorial reclassification and renum- bering as this section.