Summary of the Substantive Provisions of S. 2010, the FISA Amendments Reauthorization Act of 2017, and H.R. 3989, the USA Liberty Act of 2017

Summary of the Substantive Provisions of S. 2010, the FISA Amendments Reauthorization Act of 2017, and H.R. 3989, the USA Liberty Act of 2017

MEMORANDUM
November 16, 2017

Subject:
Summary of the Substantive Provisions of S. 2010, the FISA Amendments
Reauthorization Act of 2017, and H.R. 3989, the USA Liberty Act of 2017
From:
Edward C. Liu, Legislative Attorney, eliu@crs.loc.gov, 7-9166
This memorandum was prepared to enable distribution to more than one congressional office.

This memorandum summarizes the substantive provisions of:
 S. 2010, the FISA Amendments Reauthorization Act of 2017, as reported by the Senate
Select Committee on Intelligence on October 25, 2017, and
 H.R. 3989, the USA Liberty Act of 2017, as ordered to be reported by the House
Judiciary Committee on November 8, 2017.1
Both bills primarily amend and reauthorize Title VII2 of the Foreign Intelligence Surveillance Act of 1978
(FISA).3 FISA generally provides a statutory framework by which government agencies may, when
gathering foreign intelligence information, obtain authorization to conduct electronic surveillance4 or
physical searches,5 utilize pen registers and trap and trace devices,6 or compel the production of specified
business records and other tangible things.7 Authorization for such activities is typically obtained via a
court order from the Foreign Intelligence Surveillance Court (FISC), a specialized court created by FISA
to act as a neutral judicial decision maker in the context of activities authorized by the statute.8 FISA also
created a specialized appellate court known as the Foreign Intelligence Surveillance Court of Review
(FISCR) to review decisions of the FISC.9

1 The version of H.R. 3989 ordered to be reported by the House Judiciary Committee includes an amendment in the nature of a
substitute offered by Chairman Goodlatte, as modified by additional amendments from Reps. Conyers, Jackson Lee, and
Cicilline. See House Judiciary Committee, Markup of H.R. 3989 and H.R. 170 (Nov. 8, 2017),
https://judiciary.house.gov/markup/markup-h-r-3989-h-r-170/.
2 50 U.S.C. §§ 1881-1881g.
3 Id. §§ 1801-1885c.
4 Id. §§ 1801-1813.
5 Id. §§ 1821-1826.
6 Id. §§ 1841-1846. Pen registers capture the numbers dialed on a telephone line; trap and trace devices identify the originating
number of a call on a particular telephone line. See 18 U.S.C. § 3127(3)-(4).
7 50 U.S.C. §§ 1861-1864.
8 Id. § 1803.
9 Id.

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Title VII of FISA, added by the FISA Amendments Act of 2008, provides additional procedures for the
acquisition of foreign intelligence information regarding persons who are believed to be outside of the
United States. These provisions address both U.S. persons10 and non-U.S. persons. In particular, the FISA
Amendments Act added:
 Section 702, which includes a new procedure for targeting non-U.S. persons abroad
without individualized court orders;11
 Sections 703, which provides procedures for domestic electronic surveillance that is
targeted at U.S. persons who are abroad;12 and
 Section 704, which provides procedures for other surveillance that is targeted at U.S.
persons who are abroad.13
All three provisions of Title VII are currently scheduled to expire at the end of 2017.14 Of these
provisions, Section 702 perhaps has received the most attention, likely due to the variance of its
procedures from the other authorities under FISA.15 Traditional FISA orders authorizing electronic
surveillance generally require the FISC to find, inter alia, that probable cause exists to believe that the
particular target of the proposed surveillance is a foreign power or an agent of a foreign power.16 Under
Section 702, however, individual targets of surveillance are not necessarily reviewed by the FISC prior to
the U.S. government’s acquisition of the targets’ communications.17 Instead, the FISC’s role under Section
702 is largely limited to reviewing certifications by the Attorney General (AG) and the Director of
National Intelligence (DNI), along with targeting and minimization18 procedures that the U.S. government
proposes to use to target and acquire communications prospectively. Once the targeting and minimization
procedures are approved by the FISC, elements of the Intelligence Community (IC) such as the National
Security Agency (NSA) may use those procedures to acquire the communications of non-U.S. persons
who are reasonably believed to be outside of the United States without the need for additional court
orders specific to each target.19
The proposed amendments made to FISA Section 702 by S. 2010 and H.R. 3989 generally would not
disturb this structure, but layer on additional requirements on the contents of the targeting and
minimization procedures to provide greater privacy protections, particularly for U.S. persons.
Summaries of the provisions of S. 2010 and H.R. 3989 are organized by general topic below, along with
brief descriptions of current law relevant to the proposed legislation.

10 For purposes of FISA, a U.S. person is defined as a citizen of the United States, an alien lawfully admitted for permanent
residence, an unincorporated association a substantial number of members of which are citizens of the United States or aliens
lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a
corporation or an association which is a foreign power. Id. § 1801(i).
11 Id. § 1881a.
12 Id. § 1881b.
13 Id. § 1881c.
14 P.L. 112-238, § 2; codified at 50 U.S.C. § 1881 note.
15 See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 404 (2013) (describing the different character of Section 702 compared
to other FISA provisions in the context of assessing a constitutional challenge to Section 702).
16 50 U.S.C. § 1805(a)(2). As defined by FISA, the term “foreign power” includes international terrorist organizations. Id.
§1801(a)(4).
17 For more detailed information regarding Section 702 procedures, see CRS Report R44457, Surveillance of Foreigners Outside
the United States Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), by Edward C. Liu.
18 Minimization procedures generally provide standards governing the circumstances under which particular communications
may be acquired, used, and shared. 50 U.S.C. § 1801(h).
19 Id. §§ 1881a(a), (c).

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Table of Contents
Reauthorization of Title VII of FISA ............................................................................................................ 4
Section 702 Targeting Procedures ................................................................................................................. 4
“About” Communications Collection ........................................................................................................... 6
Use of Information Acquired Under Section 702 ......................................................................................... 7
Queries Using U.S. Person Identifiers .......................................................................................................... 8
Emergency Collection Authority ................................................................................................................ 11
FISC and FISCR Procedures ...................................................................................................................... 12
Appointment of Amicus Curiae by the FISC and FISCR ........................................................................... 13
Unauthorized Unmasking and Disclosure of Classified Information ......................................................... 14
Deletion ....................................................................................................................................................... 15
Transparency and Congressional Oversight ................................................................................................ 16
Privacy and Civil Liberties Oversight Board .............................................................................................. 18
Privacy and Civil Liberties Officers ........................................................................................................... 19
Intelligence Community Whistleblowers .................................................................................................... 19
Severability ................................................................................................................................................. 20

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Reauthorization of Title VII of FISA
Current Law
Title VII of FISA is currently scheduled to sunset on December 31, 2017.20 Transition procedures would
apply to FISA orders authorizing surveillance activities pursuant to Title VII that are in effect on
December 31, 2017, permitting the continued effect of such orders until their normal expiration dates.21
S. 2010
Section 2 of S. 2010 would extend Title VII of FISA for eight years, until December 31, 2025.
H.R. 3989
Section 301 of H.R. 3989 would extend Title VII of FISA for approximately six years, until September
30, 2023.
Section 702 Targeting Procedures
Current Law
As noted above, Section 702 of FISA requires the AG and DNI to submit proposed targeting procedures
for the acquisition of certain communications.22 In order to be approved, Section 702 requires the
targeting procedures to be reasonably designed to ensure that an acquisition is limited (1) to targeting
persons reasonably believed to be located outside the United States and (2) to prevent the intentional
acquisition of any communication where the sender and all intended recipients are known at the time of
the acquisition to be located in the United States.23
Additional limitations on targeting are provided in FISA Section 702(b). Specifically, an acquisition under
Section 702:
 may not intentionally target any person known at the time of acquisition to be located in
the United States;
 may not intentionally target a person reasonably believed to be located outside the United
States if the purpose of such acquisition is to target a particular, known person reasonably
believed to be in the United States;
 may not intentionally target a U.S. person reasonably believed to be located outside the
United States;
 may not intentionally acquire any communication as to which the sender and all intended
recipients are known at the time of the acquisition to be located in the United States; and
 must be conducted in a manner consistent with the Fourth Amendment to the
Constitution.24

20 P.L. 112-238, § 2; codified at 50 U.S.C. § 1881 note.
21 P.L. 110-261, § 404(b), as amended; codified at 50 U.S.C. § 1801 note.
22 50 U.S.C. § 1881a(d).
23 Id.
24 Id. § 1881a(b).

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Targeting procedures applicable to the National Security Agency (NSA) were partially
declassified by the DNI in 2017.25 These procedures generally require NSA to consider the
totality of the circumstances when determining whether a target is a non-U.S. person reasonably
believed to be outside the United States.26 These targeting procedures also direct NSA to
determine whether foreign intelligence is likely to be acquired from the target, based on the
totality of the circumstances.27 The targeting procedures also require NSA analysts to document
(1) citations to the information upon which they relied when making targeting determinations and
(2) the foreign power or foreign territory about which foreign intelligence information is expected
to be acquired.28
Presidential Policy Directive 28 (PPD-28), issued by President Obama on January 17, 2014, articulates
principles for conducting signals intelligence activities.29 Among other things, PPD-28 includes a
prohibition against the collection of signals intelligence for the purpose of “suppressing or burdening
criticism or dissent, or for disadvantaging persons based on their ethnicity, race, gender, sexual
orientation, or religion.”30
PPD-28 also acknowledges that “foreign private commercial information or trade secrets is authorized” to
be collected, but not for the purpose of affording U.S. companies or sectors a “competitive advantage.”31
The term “competitive advantage” does not include “identifying trade or sanctions violations or [foreign]
government influence or direction.”32
S. 2010
No provision.
H.R. 3989
Section 102(a) would amend FISA Section 702 to additionally require intelligence personnel
implementing the targeting procedures to exercise due diligence when determining whether the target of
an acquisition meets the criteria of being a non-U.S. person who is reasonably believed to be abroad.
Specifically, the determination must be based on the totality of the circumstances, including after
resolving any conflicting information regarding the proposed target. Agencies must also document the
determination process and document the rationale for why targeting such person will result in the
acquisition of foreign intelligence information.
Section 108 of H.R. 3989 appears intended to provide that the amendments made by Section 102(a) of the
House bill would apply to applications, certifications, and procedures submitted to the FISC beginning

25 DNI, Procedures Used by the National Security Agency for Targeting Non-United States Persons Reasonably Believed to be
Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of the Foreign
Intelligence Surveillance Act of 1978, as Amended (Mar. 30, 2017) [hereinafter NSA Targeting Procedures],
https://www.dni.gov/files/documents/icotr/51117/2016_NSA_702_Targeting_Procedures_Mar_30_17.pdf.
26 Id. at 1.
27 Id. at 4.
28 Id. at 8.
29 WHITE HOUSE, Presidential Policy Directive – Signals Intelligence Activities (Jan. 17, 2014) [hereinafter PPD-28],
https://obamawhitehouse.archives.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities.
30 Id. at § 1(b).
31 Id. at § 1(c).
32 Id. at n.4.

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120 days after the date of enactment of H.R. 3989.33 However, the actual text of Section 108 of H.R. 3989
references the applicability of amendments made by Sections 101 and 102 of the original FISA statute.
Given the structure and language of Section 108, the reference to the original FISA appears to be a
clerical error.
Section 109 of H.R. 3989, as modified by an amendment offered by Representative Jackson-Lee, would
provide a sense of Congress that the acquisition of communications by the NSA under FISA Section 702
should be conducted within the bounds of treaties and agreements to which the United States is a party,
and there should be no targeting of non-U.S. persons for any unfounded discriminatory purpose or for the
purpose of affording a commercial competitive advantage to U.S. companies and business sectors.
Section 109 of the bill also provides a sense of Congress that the authority to collect intelligence
conferred by FISA Section 702 is meant to shield the United States, and by extension, the allies of the
United States, from security threats.
“About” Communications Collection
Current Law
Declassified opinions from the FISC indicate that the NSA, acting pursuant to FISA Section 702, acquired
communications that were either to or from a particular targeted identifier (such as an email address or
telephone number), but also acquired additional communications between untargeted persons if the
communications were “about” the targeted identifier (i.e., a reference to the targeted identifier is present
in the body of the communication).34 Because “about” collection can capture communications to which
the Section 702 target is not a party, concerns about the potential breadth of such collection have been
raised by government entities including the FISC.35 In 2017, the NSA announced that collection of
“about” communications had ceased.36
S. 2010
Section 3 of S. 2010 addresses “abouts communications,” a term defined as communications that contain
a reference to a facility, place, premise, or property at which an acquisition under FISA Section 702 is
directed or conducted, if such communication is not actually sent to or from such facility, place, premise,
or property.37
Section 3 of S. 2010 would prohibit the use of FISA Section 702 to intentionally acquire “abouts
communications” with one exception. Under this exception, the intentional acquisition of “abouts
communications” could be implemented 30 days after written notice of the intent to conduct such
acquisition is provided to Congress by the AG and DNI. If, during the 30-day period, Congress enacts
legislation disapproving of the proposed collection of “abouts communications,” such collection may not

33 The text of Section 108 governs the applicability of amendments made by Sections 101 and 102 of the original FISA enacted in
1978. CRS assumes that Section 108 actually intends to reference the amendments made by Sections 101 and 102 of H.R. 3989.
34 Redacted, 2011 U.S. Dist. LEXIS 157706, at *19 (FISA Ct. Oct. 3, 2011).
35 Id. at *57 (finding that “about” collection may result in NSA’s acquisition of “tens of thousands of additional communications
of non-targets each year, many of whom have no relationship” to the Section 702 target). See also PRIVACY AND CIVIL LIBERTIES
OVERSIGHT BOARD, REPORT ON THE SURVEILLANCE PROGRAM OPERATED PURSUANT TO SECTION 702 OF THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT 88 (July 2, 2014), https://pclob.gov/library/702-Report.pdf.
36 NSA, NSA Stops Certain Foreign Intelligence Collection Activities Under Section 702 (Apr. 28,
2017),https://www.nsa.gov/news-features/press-room/press-releases/2017/nsa-stops-certain-702-activites.shtml.
37 S. 2010 uses the plural “abouts” rather than “about” when referring to these communications.

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be implemented. Expedited procedures for consideration of such disapproving legislation would be
provided for both the House and the Senate.
The written notice to Congress would be required to include (1) copies of certifications and supporting
material that have been submitted to the FISC in support of the proposed acquisition of “abouts
communications;” (2) decisions, orders, or opinions of the FISC approving such certifications; (3) a
summary of the protections in place to detect any significant non-compliance under the proposed
collection; and (4) a certification that the proposed collection will not occur until the 30-day period has
lapsed, except where the AG and DNI determine that exigent circumstances exist and that intelligence
information important to the national security either may be lost or not timely acquired. Notice of the
invocation of exigent circumstances must be provided to the House and Senate Intelligence and Judiciary
Committees within seven days.
The head of any agency involved in the proposed collection of “abouts communications” would be
required to report any material breaches to the House and Senate Intelligence and Judiciary Committees.
H.R. 3989
Section 102(a) of H.R. 3989 would provide that the targeting procedures adopted under FISA Section 702
must limit communications collection to those communications sent to or from the targeted person,
effectively prohibiting collection of “about” communications. This limitation would apply until
September 30, 2023. The AG is directed to submit an annual report to the Intelligence and Judiciary
Committees regarding the effect of this limitation, including any difficulties relating to the limitation and
the technical feasibility of ensuring that incidental acquisitions of U.S. person information complies with
applicable minimization procedures.
Use of Information Acquired Under Section 702
Current Law
Information acquired under FISA Section 702 regarding any U.S. person may be used and disclosed in
accordance with the minimization procedures approved by the FISC.38 FISA defines minimization
procedures to allow for evidence of crimes that has been acquired under Section 702 to be shared with
law enforcement agencies.39 Privileged communications (such as attorney-client communications) do not
lose their privileged character simply because they may have been acquired pursuant to FISA.40
Information acquired under Section 702 may only be used in a criminal proceeding with the advance
authorization of the AG.41 The government shall notify any person of information acquired under Section
702 when the government intends to enter the information into evidence or otherwise use it against such

38 50 U.S.C. §§ 1881e(a), 1806(a). Minimization procedures declassified by the DNI permit the use of Section 702 acquired
information for law enforcement purposes. DNI, Minimization Procedures Used by the National Security Agency in Connection
with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of
1978, as Amended, at 10, 12-13 (Mar. 30, 2017) [hereinafter NSA Minimization Procedures],
https://www.dni.gov/files/documents/icotr/51117/2016-NSA-702-Minimization-Procedures_Mar_30_17.pdf at 10, 12-13.
39 50 U.S.C. § 1801(h)(3).
40 Id. §§ 1881e(a), 1806(a).
41 Id. §§ 1881e(a), 1806(b).

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person in a trial, hearing, or other proceeding.42 Such information may be suppressed if unlawfully
acquired.43
S. 2010
Section 6 of S. 2010 would amend FISA Section 706(a) to apply additional restrictions on the use of
communications collected under Section 702 of FISA when such communications contain a reference to a
U.S. person. Specifically, such communications could not be used in evidence against the referenced U.S.
person in any criminal proceeding unless the AG determines that the proceeding (1) involves death;
kidnapping; serious bodily injury; certain offenses against minors; certain offenses against critical
infrastructure; cybersecurity; trans-national crime; human trafficking; or (2) affects, involves, or is related
to national security. The AG’s determinations would not be subject to judicial review.
H.R. 3989
Section 101(c) of H.R. 3989 would place additional restrictions on the use of information obtained
through the querying mechanism added by H.R. 3989 (described in the following section). Specifically,
such information could be used in evidence only with the AG’s approval, and the information also must
be directly related and necessary to address a specific threat of terrorism, espionage, proliferation of
weapons of mass destruction, cybersecurity, incapacitation or destruction of critical infrastructure, or a
threat to the armed forces or personnel of the United States or a U.S. ally.
Section 304 of H.R. 3989 would express the sense of Congress that, in carrying out FISA Section 702, the
United States should ensure that barriers to sharing critical foreign intelligence among the intelligence
community (IC) that existed before September 11, 2001, are not reimposed. The sense of Congress would
further provide that information vital to national security should be shared among the IC in a manner that
is consistent with applicable provisions of law and the Constitution.
Section 305 of H.R. 3989 would express a sense of Congress that, consistent with the protection of
sources and methods, when lawful and appropriate, the President should share information learned by
acquiring communications under FISA Section 702 with allies of the United States to prevent and defend
against terrorism.
Queries Using U.S. Person Identifiers
Current Law
Once information has been acquired under FISA Section 702, the minimization procedures adopted by the
AG and approved by the FISC govern the retention and dissemination of such information by the
government.44 For example, the minimization procedures may set forth the circumstances under which the
government may “query” (search) information previously acquired under Section 702 for the presence of
specific U.S. person identifiers (such as a telephone number or email address). In general, FISA requires
these procedures to restrict the acquisition, retention, and dissemination of non-public information
concerning U.S. persons (including identities).45 However, if the collected information is evidence of a

42 Id. §§ 1881e(a), 1806(c).
43 Id. §§ 1881e(a), 1806(e), (g).
44 Id. § 1881a(e).
45 Id. § 1801(h).

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crime, FISA allows for the retention and dissemination of such information for law enforcement
purposes.46
Minimization procedures adopted by various agencies may differ with regard to an agency’s ability to
query information. For example, minimization procedures declassified in 2017 appear to allow the NSA
and the Central Intelligence Agency (CIA) to query information collected under FISA Section 702 using
U.S. person identifiers only when reasonably likely to return foreign intelligence information.47 In
contrast, Federal Bureau of Investigation (FBI) minimization procedures appear to allow that agency to
query information acquired under Section 702 using U.S. person identifiers to additionally determine if
such information is evidence of a crime.48 The minimization procedures require the FBI to maintain
records of all searches, including search terms used.49
S. 2010
Section 7 of S. 2010 would amend FISA Section 702 to require separate querying procedures, in addition
to the targeting and minimization procedures required under current law. The querying procedures, to be
adopted by the AG in consultation with the DNI, would apply to instances in which already acquired data
is subsequently searched using a specific term or terms for the purpose of discovering or retrieving
content or metadata that has not previously been viewed by IC personnel. The querying procedures
required by S. 2010 would require records of all queries using a known U.S. person identifier to be kept
by the relevant element of the IC. The querying procedures would be subject to judicial review by the
FISC to ensure compliance with the statutory requirements. The AG and DNI would assess agencies’
compliance with the querying procedures in a semi-annual assessment provided to the FISC and the
House and Senate Intelligence and Judiciary Committees. The Inspectors General of the Department of
Justice and relevant IC elements would also have jurisdiction to conduct oversight of compliance with the
querying procedures by their respective agencies.
Section 8 of S. 2010 would further amend FISA Section 702 to require the FBI Director to notify the
FISC within one business day after a query of information acquired under Section 702 returns responsive
information concerning a known U.S. person. As part of this notice, the FBI Director would be directed to
submit the query, the responsive information, and the FBI’s justification for the query. Within two
business days after receiving this submission, the FISC would review the query for consistency with the
Fourth Amendment and notify the FBI of the court’s findings. If the FISC determined that a query was not
consistent with the Fourth Amendment, the information could not be used in any court proceeding. The
FISC would also be directed to submit an annual report on its reviews of query submissions in the
previous year to the House and Senate Intelligence Committees, including the total number of queries and
the number of queries determined to be inconsistent with the Fourth Amendment.

46 Id. § 1801(h)(3).
47 NSA Minimization Procedures, supra note 38, at 4-5; DNI, Minimization Procedures Used by the Central Intelligence Agency
in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence
Surveillance Act of 1978, as Amended, at 3 (Sept. 26,
2016),https://www.dni.gov/files/documents/icotr/51117/2016_CIA_Section_702_Minimization_Procedures_Se_26_2016.pdf.
48 DNI, Minimization Procedures Used by the Federal Bureau of Investigation in Connection with Acquisitions of Foreign
Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended, at 11 (Sept.
26, 2016),
https://www.dni.gov/files/documents/icotr/51117/2016_FBI_Section_702_Minimization_Procedures_Sep_26_2016_part_1_and_
part_2_merged.pdf at 11.
49 Id.

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Section 8 also includes a rule of construction stating that it shall not be construed to require any action to
determine the nationality of an individual that would not have been required prior to the enactment of S.
2010. The query submission requirement would take effect 90 days after the date of enactment of S. 2010.
H.R. 3989
Section 101 of H.R. 3989 would amend FISA Section 702 to impose additional requirements before
accessing information acquired under Section 702 that is returned in response to a query. If a query seeks
the contents of a communication, the AG would be required to apply to the FISC for a court order finding
that:
 probable cause exists to believe that the contents of the communication include evidence
of one of the crimes that is a predicate crime to support a wiretap under the Electronic
Communications Privacy Act;50
 the communication is relevant to an authorized investigation or assessment that is not
conducted solely on the basis of First Amendment protected activities; and
 any use of such communications by the government will be consistent with the
requirements of H.R. 3989.
A denial of the application for such an order by the FISC could be reviewed by the FISCR, and
potentially thereafter by the Supreme Court.
A lower standard would apply to queries that seek non-content information such as dialing, routing,
addressing, or signaling information. For this type of information or metadata, a supervisor would be
required to approve of the query, but a court order authorizing the query would not generally be required.
As with queries for content information, the information could not be sought solely on the basis of
activities protected by the First Amendment. If a court order based on probable cause would have been
required to obtain such metadata as part of a federal criminal investigation, the government would also be
required to apply to the FISC for a court order before submitting a query of FISA Section 702
information. Under Section 101 of H.R. 3989, neither requirement to obtain a FISC order nor supervisory
approval would apply to a query if:
 the query is reasonably designed to return foreign intelligence information
(notwithstanding the fact that such information may describe activities that are also
federal crimes);
 the AG determines that the person identified by the queried term is already the subject of
a wiretap or electronic surveillance order under federal law;
 the AG reasonably determines that an emergency situation requires access to the
information before either a court order or supervisory approval can be obtained;
 the AG reasonably determines that the person identified by the queried term is
communicating with another person who is reasonably believed to be engaged in, or
preparing to engage in, international terrorism or material support for terrorism;51 or
 the person identified by the queried term has consented to the query.

50 18 U.S.C. § 2516.
51 The AG must also reasonably believe that the factual basis for the issuance of the order exists and must contemporaneously
inform the FISC of the exercise of this authority to access the contents of communications. If the FISC subsequently determines
that these criteria were not met, the contents of communications may not be used by the government.

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Before making this determination, the AG would be required to conduct a review of the relevant metadata
that causes him to (1) reasonably suspect that the third party is engaged in international terrorism or
material support for terrorism, and (2) conclude that a failure or delay to access or disseminate the
contents of the communications would harm the national security. The AG would be required to notify the
FISC as soon as practicable (but at most within seven days) of the invocation of this exception and the
factual basis for it. If the FISC finds that the determination was not appropriate or the factual basis was
erroneous, the government could not use such communications in any hearing, trial, or proceeding.
If the AG determines that it is necessary to conduct electronic surveillance on a known U.S. person whose
communications have been acquired under FISA Section 702, the AG could only conduct such
surveillance using other provisions of law. Section 101 of H.R. 3989 also instructs the FBI Director to
ensure that all available investigative or intelligence databases are queried simultaneously. The AG would
be instructed to delegate authority to authorize queries under this provision to the fewest number of
officials practicable.
Under the House bill, the AG and other IC elements would retain records of queries that use a term
identifying a U.S. person for at least five years. The records would be maintained in an auditable manner
and made available for congressional oversight. The requirements for queries under this provision would
not apply to queries made for submitting information to Congress, performing maintenance, or testing
information systems. As discussed above, the information received in response to queries under this
provision would be subject to additional limitations on use.52
Section 106 of H.R. 3989 would also require the FBI Director to submit semiannual reports to the House
and Senate Intelligence and Judiciary Committees regarding the total number of query applications made,
the number of query applications approved, the number of supervisory approvals made, the number of
emergency exceptions made by the AG, the number of emergency exceptions with which the FISC
disagreed, the number of terrorism-related exceptions made, and the number of terrorism-related
exceptions with which the FISC disagreed.
Section 108 of H.R. 3989 appears intended to provide that the amendments made by Section 101 of the
House bill would apply to applications, certifications, and procedures submitted to the FISC beginning
120 days after the date of enactment of H.R. 3989. However, the actual text of Section 108 of H.R. 3989
references the applicability of amendments made by Sections 101 and 102 of the original FISA statute.
Given the structure and language in Section 108, the reference to the original FISA appears to be a
clerical error.
Emergency Collection Authority
Current Law
Title I and Title III of FISA authorize court orders, supported by probable cause, to conduct electronic
surveillance and physical searches, respectively.53 These titles also permit short-term electronic
surveillance and physical searches targeting a U.S. person without a court order in emergency situations.54
If an order under Title I or Title III has been issued with respect to a U.S. person, FISA Section 705
permits the AG to authorize the additional targeting of that U.S. person for the purpose of acquiring
foreign intelligence information while that person is reasonably believed to be outside of the United

52 See supra “Use of Information Acquired Under Section 702.”
53 50 U.S.C. §§ 1801-1813, 1821-1829.
54 Id. §§ 1805(e), 1824(e).

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States.55 However, Section 705 of FISA does not include a provision allowing the AG to authorize
targeting of U.S. persons reasonably believed to be outside of the United States if they are currently being
targeted for emergency electronic surveillance or physical searches.56 FISA Sections 703 and 704, which
provide procedures for court orders targeting U.S. persons abroad, permit emergency acquisitions without
a court order, but such acquisitions must be followed by an application for a court order within seven
days.57
S. 2010
Section 9 of S. 2010 would amend FISA Section 705 to address situations where a U.S. person has been
subject to emergency electronic surveillance or physical searches under Title I or Title III of FISA. During
the applicable emergency period, the AG would be permitted to authorize the targeting of that person for
acquiring foreign intelligence while that person is reasonably believed to be outside the United States. If a
court order is not issued following the emergency surveillance under Title I or Title III of FISA, the
information acquired under FISA Section 705 would not be available as evidence or otherwise disclosed
in any trial, hearing, or proceeding, unless the AG determines that the information indicates a threat of
death or serious bodily harm to any person.
H.R. 3989
No provision.
FISC and FISCR Procedures
Current Law
The FISC is an Article III court58 composed of 11 district court judges selected by the Chief Justice of the
Supreme Court from at least seven of the regional judicial circuits.59 The FISCR, is an Article III court
which sits as an appellate court above the FISC, comprised of three judges designated by the Chief
Justice.60 While judges of traditional Article III courts are selected via presidential appointment following
Senate confirmation,61 FISC and FISCR judges are “designated” to the court by the Chief Justice.62 The
FISC’s jurisdiction is limited to hearing applications and granting orders for “the collection of foreign
intelligence by the federal government.”63 This includes applications for (1) electronic surveillance; (2)
physical searches; (3) pen register/trap and trace surveillance; and (4) orders to compel the production of
tangible things.64 Under the FISA Amendments Act of 2008 (FAA), the FISC is authorized to review

55 Id. § 1881d(a).
56 Id. §§ 1881b(d), 1881c(d).
57 Id.
58 See United States v. Cavanagh, 807 F.2d 787, 791 (9th Cir. 1987) (Kennedy, J.).
59 50 U.S.C. § 1803(a)(1).
60 Id. § 1803(b).
61 U.S. CONST., art. II, § 2, cl. 2.
62 50 U.S.C. §§ 1803(a)(1), (b).
63 In re Release of Court Records, 526 F. Supp. 2d 484, 487 (FISA Ct. 2007).
64 See 50 U.S.C. § 1803(a) (electronic surveillance); id. § 1822(c) (physical searches); id. § 1842(a)(1) (pen registers); id. §
1861(b)(1) (tangible things).

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applications for targeting U.S. persons reasonably believed to be abroad.65 The government may appeal a
denial of a FISA application to the FISCR.66
S. 2010
No provision.
H.R. 3989
Section 306 of H.R. 3989 makes a number of amendments relating to the FISC and the FISCR.
Specifically, the provision would:
 remove the temporal requirement that the FISCR “immediately” provide a written
statement for its decision affirming the denial of a FISA application;
 specify that the FISCR, in addition to the FISC, has the inherent authority to determine or
enforce compliance with its orders or rules; and
 specify that denials of applications to extend electronic surveillance, applications for pen
registers and trap and trace devices orders, and applications for orders to produce tangible
things may be reviewed by the FISCR.
Section 306 of H.R. 3989 also makes a number of technical amendments to the text of FISA to correct
grammatical errors and cross-references.
Appointment of Amicus Curiae by the FISC and FISCR
Current Law
The term amicus curiae, or “friend of the court,” refers to a person who is not a party to a particular
lawsuit or proceeding, but who may be heard by a court on a particular issue (via petition to the court or
request from the court).67 Amici have been used previously by both the FISC and the FISCR.68 The role of
amici in FISA proceedings was codified in 2015 by the USA FREEDOM Act.69
Section 103 of FISA, as amended by the USA FREEDOM Act, authorizes the presiding judges of the
FISC and FISCR to designate at least five individuals to be eligible to serve as amicus curiae.70 Either
court shall appoint amici to assist in the consideration of any application that, in the opinion of the court,
presents a novel or significant interpretation of the law, unless the court issues a finding that such
appointment is not appropriate.71 Either court may also appoint an amicus in any instance the court deems
appropriate or may grant leave for an individual or organization to file an amicus curiae brief.72

65 Id. §§ 1881b(a), 1881c(a).
66 Id. §§ 1803(b), 1822(d), 1861(f)(3).
67 BLACK’S LAW DICTIONARY 102 (10th ed. 2014).
68 See, e.g., In re Orders of this Court Interpreting Section 215 of the Patriot Act, 2013 U.S. Dist. LEXIS 143060, at n.5 (FISA Ct.
Sept. 13, 2013); and In re Sealed Case, 310 F.3d 717, 719 (FISA Ct. Rev. 2002).
69 P.L. 114-23, § 401, codified at 50 U.S.C. § 1803(i).
70 50 U.S.C. § 1803(i)(1).
71 Id. § 1803(i)(2)(A).
72 Id. § 1803(i)(2)(B).

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S. 2010
Section 4 of S. 2010 would amend FISA Section 103 to provide a rebuttable presumption that the first
certification proposing to authorize acquisition of “abouts communications” (as described above)
pursuant to Section 3 of the Senate bill would present a novel or significant interpretation of the law such
that the appointment of an amicus curiae would be warranted.73
Section 5 of S. 2010 would also amend FISA Section 103 to provide that amici appointed by either the
FISC or FISCR may be compensated by either court at a rate the court considers appropriate.
H.R. 3989
Section 104 of H.R. 3989 would amend FISA Section 103 to provide that the FISC and FISCR shall
appoint an amicus curiae with respect to the review of any certification under FISA Section 702, unless
the court issues a finding that an amicus is unnecessary.
Unauthorized Unmasking and Disclosure of Classified
Information
Current Law
The minimization procedures that were adopted under FISA Section 702, and approved by the FISC,
generally protect against the retention, use, and dissemination of non-public information concerning U.S.
persons.74 The protection of U.S. persons’ identities is expressly included in FISA’s statutory definition of
requisite minimization procedures.75 However, disclosure of identifying information is permissible to the
extent that “such [U.S.] person’s identity is necessary to understand foreign intelligence information or
assess its importance.”76 The process by which a U.S. person’s identity is disseminated, so that the
recipient may better understand the foreign intelligence implications of related information, is typically
referred to as “unmasking.”
Information collected under FISA is also frequently protected from disclosure as classified information.
Several provisions of federal criminal law prohibit the disclosure of sensitive national defense
information or classified information.77 For example, 18 U.S.C. § 1924(a) makes it a misdemeanor for
officers, employees, consultants, and contractors of the United States to knowingly remove documents or
materials containing classified information without authority and with the intent to keep such documents
or materials at an unauthorized location. Violations of 18 U.S.C. § 1924(a) are punishable by fine and up
to one year in prison.78

73 See, supra at ““About” Communications Collection.”
74 50 U.S.C. § 1801(h).
75 Id. § 1801(h)(2).
76 Id.
77 See CRS Report R41404, Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information, by
Stephen P. Mulligan and Jennifer K. Elsea.
78 18 U.S.C. § 1924(a).

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S. 2010
Section 12 of S. 2010 would amend 18 U.S.C. § 1924(a) to increase the criminal penalty for violations so
that the maximum term of imprisonment would be not more than 10 years.
H.R. 3989
Section 102 of H.R. 3989 would amend FISA Section 702 to impose additional requirements on the
minimization procedures specific to unmasking. Specifically, the minimization procedures would be
required to include specific procedures for the submission of requests to unmask information in
disseminated intelligence reports. These unmasking procedures would require (1) documentation of the
reasons for the unmasking and (2) the retention of records relating to each request (such as the identities
of the requester and any persons approving such request). “Unmask” would be defined to mean the
dissemination of the identity of a U.S. person whose identity had not been previously released. Similar
requirements would also be placed on information acquired through traditional electronic surveillance,
physical searches, pen registers and trap and trace devices, and orders for the production of tangible
things.
Section 102 H.R. 3989 would also require the DNI to submit a report to the House and Senate
Intelligence and Judiciary Committees on progress made to ensure (1) incidentally acquired
communications of U.S. persons are properly masked and (2) implementation of unmasking procedures as
added by this section.
Section 108 of H.R. 3989 appears intended to provide that the amendments made by Section 102 of the
House bill would apply to applications, certifications, and procedures submitted to the FISC beginning
120 days after the date of enactment of H.R. 3989. However, the actual text of Section 108 of H.R. 3989
references the applicability of amendments made by Sections 101 and 102 of the original FISA statute.
Given the structure and language in Section 108, the reference to the original FISA appears to be a
clerical error.
Section 302 of H.R. 3989 would amend 18 U.S.C. § 1924(a) to increase the criminal penalty for
violations so that the maximum term of imprisonment would be not more than five years.
An amendment to H.R. 3989 adopted at markup would provide a rule of construction, stating that nothing
in the bill may be construed to limit the application or effect of criminal penalties under the Privacy Act
of 1974 or 18 U.S.C. § 1924, with respect to offenses relating to the unauthorized access or use of
information or the unauthorized disclosure of U.S. person’s information acquired under Section 702.79
Deletion
Current Law
FISA Section 106 requires that if the contents of any communication are unintentionally acquired by
surveillance under circumstances in which a party has a reasonable expectation of privacy and a warrant
would be required to intercept the communication for law enforcement purposes, such contents shall be
destroyed if both the sender and all intended recipients are located within the United States.80 Such

79 Amendment to the Amendment in the Nature of a Substitute to H.R. 3989 Offered by Rep.
Cicilline,https://judiciary.house.gov/wp-content/uploads/2017/11/Cicilline.pdf.
80 50 U.S.C. § 1806(i).

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contents shall be destroyed as soon as they are recognized.81 Destruction of the contents of the
communication is not required if the AG determines that the contents indicate a threat of death or serious
bodily harm to any person.82 This requirement applies to information acquired through electronic
surveillance and also applies to information unintentionally collected under FISA Section 702.83
S. 2010
No provision.
H.R. 3989
Section 201 of H.R. 3989 would amend FISA Section 702 to require that the NSA Director include an
affidavit stating that communications acquired under Section 702 were deleted upon a determination that
those communications did not contain foreign intelligence information. This affidavit would be submitted
as part of the semiannual assessment required under current law, and could not be delegated by the NSA
Director to another person.
Transparency and Congressional Oversight
Current Law
FISA currently requires a number of periodic reports and assessments to be provided to congressional and
public audiences, including:
 annual public reports by the DNI providing the total number of individualized electronic
surveillance and physical search orders; the total number of Section 702 orders and a
good faith estimate of queries and searches of information collected under Section 702;
the total number of pen registers and trap and trace device orders; the total number of
orders to produce tangible things; and the total number of national security letters
issued;84
 annual reporting by the AG to the Administrative Office of the U.S. Courts and Congress
on the total number of applications made for orders and extensions of FISC orders
approving electronic surveillance;85
 Semiannual reporting by the AG to the House and Senate Intelligence and Judiciary
Committees on the number of applications for pen registers and trap and trace device
orders;86 and
 semiannual reporting by the AG to the House and Senate Intelligence and Judiciary
Committees on the implementation of Section 702, including incidents of non-
compliance.87

81 Id.
82 Id.
83 Id. § 1881e(a).
84 Id. § 1873(b).
85 Id. § 1807.
86 Id. § 1846(b).
87 Id. § 1881f.

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S. 2010
Section 6(b) of S. 2010 would require the annual public report from the DNI to include a good faith
estimate of (1) the number of U.S. person and non-U.S. person targets of individualized electronic
surveillance and physical search orders; (2) the number of FISA Section 702 targets; (3) the number of
times that the FBI received FISA Section 702 information in response to a query that was reasonably
designed to find evidence of a crime; (4) the number of instances in when the FBI opened a criminal
investigation of a U.S. person based in whole or in part on Section 702 information; and (5) the number of
criminal proceedings in which the FBI provided notice that the government intended to use FISA-derived
information.
H.R. 3989
Section 103 of H.R. 3989 would amend FISA Section 702 to direct the DNI, in consultation with the AG,
to conduct a declassification review of minimization procedures adopted under Section 702, and to make
such minimization procedures public to the greatest extent practicable (including in redacted form) no
later than 180 days after conducting the review.
Section 105 of H.R. 3989 would amend FISA Section 707 to require the DNI’s semiannual Section 702
report to include (1) the number of U.S. persons’ communications acquired under FISA Section 702, or a
detailed explanation if neither a number or good faith estimate can be made; (2) the number of U.S.
persons whose identities were unmasked; (3) the number of requests made by an element of the federal
government to unmask such information; (4) the number of requests that resulted in the dissemination of
U.S. persons’ identities; (5) the number of Section 702 communications provided to the FBI for cases
unrelated to foreign intelligence; (6) the number of instances when evidence of a crime unrelated to
foreign intelligence was shared by the FBI’s national security branch to the FBI’s criminal investigative
division; and (7) the number of individuals to whom the AG has delegated authority related to U.S. person
queries.
As noted above, Section 106 of H.R. 3989 would also amend FISA Section 707 to require the FBI
Director to semiannually report to the House and Senate Intelligence and Judiciary Committees on
statistics of FBI queries of information acquired under FISA Section 702.88
Section 107 of H.R. 3989 would amend Section 107 of FISA to require the AG to transmit to the
Administrative Office of the U.S. Courts and to Congress a report including (1) the total number of
applications for orders and extensions of orders for electronic surveillance; (2) the total number of such
orders granted, modified, or denied; and (3) the total number of persons subject to emergency electronic
surveillance, rounded to the nearest 500, including the number of U.S. persons in that group, reported to
the nearest band of 500, starting with 0-499. This report would be submitted in unclassified form and
made publicly available.
Section 107 of H.R. 3989 would further amend Section 406 of FISA to require inclusion of a good faith
estimate of the total number of subjects who were targeted by pen registers and trap and trace device
orders or emergency authorizations rounded to the nearest 500, including the number of such subjects
who are U.S. persons; and the number of persons whose information was reviewed or accessed. These
numbers would be reported to the nearest band of 500, starting with 0–499. The report would be
submitted in unclassified form and made publicly available.
Section 303 of H.R. 3989 would direct the Comptroller General of the United States to conduct a study of
the unauthorized disclosure of classified information and the classification system of the United States

88 See “Queries Using U.S. Person Identifiers.”

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generally. The study would be required to address (1) insider threat risks; (2) the effect of modern
technology; (3) the effect of overclassification; (4) ways to improve the classification system; (5) ways to
improve the authorized sharing of classified information; (6) the value of polygraph tests; and (7) the
uniformity of standards and proper training across the IC. The report would be submitted within 180 days
after the date of enactment of H.R. 3989 to the House and Senate Intelligence and Judiciary Committees.
Privacy and Civil Liberties Oversight Board
Current Law
The Privacy and Civil Liberties Oversight Board (PCLOB) is an independent agency established under
federal law.89 Its duties include analyzing and reviewing executive branch actions to protect against
terrorism, so as to ensure that appropriate consideration is given to privacy and civil liberties
protections.90 The PCLOB is comprised of a full-time chairman and four additional members, each
serving a six-year term.91 The PCLOB meets upon the call of the chairman or a majority of its members.92
Three members constitute a quorum.93 The chairman may appoint and fix the compensation of PCLOB’s
staff including a full-time executive director.94
S. 2010
Section 10 of S. 2010 would exempt the PCLOB from statutory requirements for federal agencies
regarding public reporting and public meeting accessibility.
Section 11 of S. 2010 would provide that during periods when the position of chairman is vacant or a
quorum is absent, the remaining members of the PCLOB, or a single member if only one member has
been appointed, may exercise, through a unanimous vote, the authority of the chairman regarding the
appointment of staff.
H.R. 3989
Section 202 of H.R. 3989 would allow the members of the PCLOB, through a unanimous vote, to
exercise the authority of the chairman regarding the appointment of staff, if the position of chairman is
vacant.
Section 202 would also exempt the PCLOB from statutory requirements regarding public meetings, and
allow the PCLOB to meet or deliberate in a manner closed to the public.
Section 202 would also direct the PCLOB to submit a report to the House and Senate Intelligence and
Judiciary Committees assessing (1) how communications acquired under FISA Section 702 are used by
the United States to prevent or defend against terrorism; (2) whether technological challenges and
changes in technology affect the prevention of and defense against terrorism, and how effectively the IC
has responded to those challenges; (3) how privacy and civil liberties are affected by the use of
communications acquired under Section 702 or by changes in technology; and (4) whether race, religion,

89 42 U.S.C. § 2000ee(a).
90 Id. § 2000ee(c).
91 Id. §§ 2000ee(h)(1), (h)(4).
92 Id. § 2000ee(h)(5).
93 Id.
94 Id. § 2000ee(j).

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political affiliation, or activities protected under the First Amendment are determinative in targeting or
querying decisions made under FISA Section 702. The report would be submitted not later than one year
after the PCLOB has a quorum of members.
Privacy and Civil Liberties Officers
Current Law
Section 1062 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) directed the AG,
the Secretary of Defense, the Secretary of State, the Secretary of the Treasury, the Secretary of Health and
Human Services, the Secretary of Homeland Security, the DNI, the Director of the CIA, and the head of
any other department, agency, or element of the executive branch designated by the PCLOB to designate
at least one senior officer to serve as a Privacy and Civil Liberties Officer for the relevant agency.95
S. 2010
No provision.
H.R. 3989
Section 203 of H.R. 3989 would amend Section 1062 of the IRTPA to add the NSA and the FBI to the list
of agencies required to designate a Privacy and Civil Liberties Officer. Section 203 would further require
the Privacy and Civil Liberties Officers of IC elements to review incidentally collected communications
of U.S. persons to assess compliance with the minimization procedures adopted under FISA Section 702
and effects on the privacy of U.S. persons.
Intelligence Community Whistleblowers
Current Law
Federal law prohibits retaliation against employees of certain IC elements for the lawful disclosure of
information to the DNI, the Inspector General of the IC, the head of the IC element, the inspector general
of the particular IC element at which the whistleblower is employed, a congressional intelligence
committee, or a member of a congressional intelligence committee. This protection against retaliation
applies when the employee reasonably believes the disclosed information either evidences a violation of
law; mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to
public health or safety.96 In addition to personnel actions, prohibited retaliation includes revocation of
security clearances.97
S. 2010
No provision.

95 Id. § 2000ee-1(a).
96 50 U.S.C. § 3234(b).
97 Id. § 3341(j).

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H.R. 3989
Section 204 would extend the anti-retaliation protections provided under federal law to reach the
employees of contractors of certain IC elements, including the FBI. Specifically, such protections would
apply to employees of (1) contractors, (2) subcontractors, (3) grantees, (4) subgrantees, and (5) personal
services contractors.
Severability
Current Law
When one provision of a law is held unconstitutional, the Supreme Court has held that “[u]nless it is
evident that the Legislature would not have enacted those provisions which are within its power,
independently of that which is not, the invalid part may be dropped if what is left is fully operative as a
law.”98 Congress frequently includes a pro forma severability clause in a statute,99 and this may reinforce
a “presumption” of severability.100 Absence of a severability clause does not raise a presumption against
severability.101
FISA does not contain a severability clause. However, Section 401 of the FISA Amendments Act of 2008,
which added Title VII to FISA provides that if any provision of that act, any amendment made by that act,
or the application thereof to any person or circumstances is held invalid, the validity of the remaining
provisions, amendments, and the application of such provisions to other persons and circumstances shall
not be affected.102
S. 2010
No provision.
H.R. 3989
Section 307 of H.R. 3989 includes a severability clause, providing that if any provision of the act, or any
amendment made by the act, or the application thereof to any person or circumstances is held invalid, the
validity of the remainder of the act, and of the application of such provisions to other persons and
circumstances shall not be affected.

98 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)).
99 See, e.g., 2 U.S.C. § 1438 (“If any provision of this Act or the application of such provision to any person or circumstance is
held to be invalid, the remainder of this Act and the application of the provisions of the remainder to any person or circumstance
shall not be affected thereby.”).
100 Alaska Airlines, 480 U.S. at 486.
101 New York v. United States, 505 U.S. 144, 186 (1992).
102 P.L. 110-261, § 401.