S. 1631: FISA Improvements Act of 2013

113th Congress, 2013–2015. Text as of Oct 31, 2013 (Placed on Calendar in the Senate).

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II

Calendar No. 235

113th CONGRESS

1st Session

S. 1631

IN THE SENATE OF THE UNITED STATES

October 31, 2013

, from the Select Committee on Intelligence, reported the following original bill; which was read twice and placed on the calendar

A BILL

To consolidate the congressional oversight provisions of the Foreign Intelligence Surveillance Act of 1978 and for other purposes.

1.

Short title

This Act may be cited as the FISA Improvements Act of 2013 .

2.

Supplemental procedures for acquisition of certain business records for counterterrorism purposes

(a)

Supplemental procedures for acquisition of certain business records for international terrorism investigations

Section 501 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1861 ) is amended by adding at the end the following:

(i)

General prohibition on bulk collection of communication records

No order issued pursuant to an application made under subsection (a) may authorize the acquisition in bulk of wire communication or electronic communication records from an entity that provides an electronic communication service to the public if such order does not name or otherwise identify either individuals or facilities, unless such order complies with the supplemental procedures under subsection (j).

(j)

Authorization for bulk collection of non-content metadata

(1)

Supplemental procedures

Any order directed to the Government under subsection (a) that authorizes the acquisition in bulk of wire communication or electronic communication records, which shall not include the content of such communications, shall be subject to supplemental procedures, which are in addition to any other requirements or procedures imposed by this Act, as follows:

(A)

Content prohibition

Such an order shall not authorize the acquisition of the content of any communication.

(B)

Authorization and renewal periods

Such an order—

(i)

shall be effective for a period of not more than 90 days; and

(ii)

may be extended by the court on the same basis as an original order upon an application under this title for an extension and new findings by the court in accordance with subsection (c).

(C)

Security procedures for acquired data

Information acquired pursuant to such an order (other than information properly returned in response to a query under subparagraph (D)(iii)) shall be retained by the Government in accordance with security procedures approved by the court in a manner designed to ensure that only authorized personnel will have access to the information in the manner prescribed by this section and the court’s order.

(D)

Limited access to data

Access to information retained in accordance with the procedures described in subparagraph (C) shall be prohibited, except for access—

(i)

to perform a query using a selector for which a recorded determination has been made that there is a reasonable articulable suspicion that the selector is associated with international terrorism or activities in preparation therefor;

(ii)

to return information as authorized under paragraph (3); or

(iii)

as may be necessary for technical assurance, data management or compliance purposes, or for the purpose of narrowing the results of queries, in which case no information produced pursuant to the order may be accessed, used, or disclosed for any other purpose, unless the information is responsive to a query authorized under paragraph (3).

(2)

Record requirement

(A)

Determination

For any determination made pursuant to paragraph (1)(D)(i), a record shall be retained of the selector, the identity of the individual who made the determination, the date and time of the determination, and the information indicating that, at the time of the determination, there was a reasonable articulable suspicion that the selector was associated with international terrorism or activities in preparation therefor.

(B)

Query

For any query performed pursuant to paragraph (1)(D)(i), a record shall be retained of the identity of the individual who made the query, the date and time of the query, and the selector used to perform the query.

(3)

Scope of permissible query return information

For any query performed pursuant to paragraph (1)(D)(i), the query only may return information concerning communications—

(A)

to or from the selector used to perform the query;

(B)

to or from a selector in communication with the selector used to perform the query; or

(C)

to or from any selector reasonably linked to the selector used to perform the query, in accordance with the court approved minimization procedures required under subsection (g).

(4)

Limits on personnel authorized to make determinations or perform queries

A court order issued pursuant to an application made under subsection (a), and subject to the requirements of this subsection, shall impose strict, reasonable limits, consistent with operational needs, on the number of Government personnel authorized to make a determination or perform a query pursuant to paragraph (1)(D)(i). The Director of National Intelligence shall ensure that each such personnel receives comprehensive training on the applicable laws, policies, and procedures governing such determinations and queries prior to exercising such authority.

(5)

Automated reporting

(A)

Requirement for automated reporting

The Director of the National Intelligence, in consultation with the head of the agency responsible for acquisitions pursuant to orders subject to the requirements of this subsection, shall establish a technical procedure whereby the aggregate number of queries performed pursuant to this subsection in the previous quarter shall be recorded automatically, and subsequently reported to the appropriate committees of Congress.

(B)

Availability upon request

The information reported under subparagraph (A) shall be available to each of the following upon request:

(i)

The Inspector General of the National Security Agency.

(ii)

The Inspector General of the Intelligence Community.

(iii)

The Inspector General of the Department Justice.

(iv)

Appropriate officials of the Department of Justice.

(v)

Appropriate officials of the National Security Agency.

(vi)

The Privacy and Civil Liberties Oversight Board.

(6)

Court review of records

(A)

Requirement to provide records

In accordance with minimization procedures required by subsection (g), and subject to subparagraph (B), a copy of each record for a determination prepared pursuant to paragraph (2)(A) shall be promptly provided to the court established under section 103(a).

(B)

Records associated with United States persons

In accordance with minimization procedures required by subsection (g), a copy of each record for a determination prepared pursuant to paragraph (2)(A) that is reasonably believed to be associated with a particular, known United States person shall be promptly provided the court established under section 103(a), but no more than 7 days after the determination.

(C)

Remedy for improper determinations

If the court finds that the record of the determination indicates the determination did not meet the requirements of this section or is otherwise unlawful, the court may order that production of records under the applicable order be terminated or modified, that the information returned in response to queries using the selector identified in the determination be destroyed, or another appropriate remedy.

(7)

Record retention and query restrictions

(A)

Record retention

All records and information produced pursuant to an order subject to this subsection, other than the results of queries as described in paragraph (3), shall be retained no longer than 5 years from the date of acquisition.

(B)

Query restrictions

The Government shall not query any data acquired under this subsection and retained in accordance with the procedures described in paragraph (1)(C) more than 3 years after such data was acquired unless the Attorney General determines that the query meets the standard set forth in paragraph (1)(D)(i).

(8)

Congressional oversight

A copy of each order issued pursuant to an application made under subsection (a), and subject to the requirements of this subsection, shall be provided to the appropriate committees of Congress.

(9)

Definitions

In this subsection:

(A)

Appropriate committees of Congress

The term appropriate committees of Congress means—

(i)

the Committee on the Judiciary and the Select Committee on Intelligence of the Senate; and

(ii)

the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives.

(B)

Content

The term content, with respect to a communication—

(i)

means any information concerning the substance, purport, or meaning of that communication; and

(ii)

does not include any dialing, routing, addressing, signaling information.

(C)

Electronic communication

The term electronic communication has the meaning given that term in section 2510 of title 18, United States Code.

(D)

Electronic communication service

The term electronic communication service has the meaning given that term in section 2510 of title 18, United States Code.

(E)

Selector

The term selector means an identifier, such as a phone number or electronic account identifier, that is associated with a particular communicant or facility.

(F)

United States person

The term United States person has the meaning given that term in section 101 of this Act.

(G)

Wire communication

The term wire communication has the meaning given that term in section 2510 of title 18, United States Code.

.

(b)

Annual unclassified report

Section 502(c)(1) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1862(c)(1) ) is amended—

(1)

in subparagraph (A), by striking and at the end;

(2)

in subparagraph (B), by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following:

(C)

for each order subject to the supplemental procedures under section 501(j)

(i)

the number of unique selectors for which a recorded determination has been made under section 501(j)(1)(D)(i) that reasonable articulable suspicion exists that the selector is associated with international terrorism or activities in preparation therefor;

(ii)

the aggregate number of queries performed pursuant to such section;

(iii)

the aggregate number of investigative leads developed as a direct result of any query performed pursuant to subsection (j)(1)(D)(i); and

(iv)

the aggregate number of warrants or court orders, based upon a showing of probable cause, issued pursuant to title I or III of this Act or chapter 119, 121, or 205 of title 18, United States Code, in response to applications for such warrants or court orders containing information produced by such queries.

.

3.

Enhanced criminal penalties for unauthorized access to collected data

Section 1030 of title 18, United States Code, is amended as follows:

(1)

Subsection (a) is amended—

(A)

in paragraph (5)(C), by striking the period at the end and inserting a semicolon;

(B)

in paragraph (7)(C), by adding or at the end; and

(C)

by inserting after paragraph (7)(C) the following:

(8)

accesses a computer without authorization or exceeds authorized access and thereby obtains information from any department or agency of the United States knowing or having reason to know that such computer was operated by or on behalf of the United States and that such information was acquired by the United States pursuant to the Foreign Intelligence Surveillance Act ( 50 U.S.C. 1801 et seq. ) pursuant to an order issued by a court established under section 103 of that Act ( 50 U.S.C. 1803 ).

.

(2)

Subsection (c) is amended—

(A)

in paragraph (4)(G)(ii), by striking the period at the end and inserting a semicolon and or; and

(B)

by adding at the end the following:

(5)

a fine under this title, imprisonment for not more than 10 years, or both, in the case of an offense under subsection (a)(8) of this section.

.

4.

Appointment of amicus curiae

Section 103 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803 ) is amended by adding at the end the following:

(i)

Amicus curiae

(1)

Authorization

Notwithstanding any other provision of law, a court established under subsection (a) or (b) is authorized, consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time, to appoint amicus curiae to assist the court in the consideration of a covered application.

(2)

Definitions

In this subsection:

(A)

Appropriate committees of Congress

The term appropriate committees of Congress means—

(i)

the Committee on the Judiciary and the Select Committee on Intelligence of the Senate; and

(ii)

the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives.

(B)

Covered application

The term covered application means an application for an order or review made to a court established under subsection (a) or (b)

(i)

that, in the opinion of such a court, presents a novel or significant interpretation of the law; and

(ii)

that is—

(I)

an application for an order under this title, title III, IV, or V of this Act, or section 703 or 704 of this Act;

(II)

a review of a certification or procedures under section 702 of this Act; or

(III)

a notice of non-compliance with any such order, certification, or procedures.

(3)

Designation

The courts established by subsection (a) and (b) shall each designate 1 or more individuals who have been determined by appropriate executive branch officials to be eligible for access to classified national security information, including sensitive compartmented information, who may be appointed to serve as amicus curiae. In appointing an amicus curiae pursuant to paragraph (1), the court may choose from among those so designated.

(4)

Expertise

An individual appointed as an amicus curiae under paragraph (1) may be a special counsel or an expert on privacy and civil liberties, intelligence collection, telecommunications, or any other area that may lend legal or technical expertise to the court.

(5)

Duties

An amicus curiae appointed under paragraph (1) to assist with the consideration of a covered application shall carry out the duties assigned by the appointing court. That court may authorize, to the extent consistent with the case or controversy requirements of Article III of the Constitution of the United States and the national security of the United States, the amicus curiae to review any application, certification, petition, motion, or other submission that the court determines is relevant to the duties assigned by the court.

(6)

Notification

A court established under subsection (a) or (b) shall notify the Attorney General of each exercise of the authority to appoint an amicus curiae under paragraph (1).

(7)

Assistance

A court established under subsection (a) or (b) may request and receive (including on a non-reimbursable basis) the assistance of the executive branch in the implementation of this subsection.

(8)

Administration

A court established under subsection (a) or (b) may provide for the designation, appointment, removal, training, support, or other administration of an amicus curiae appointed under paragraph (1) in a manner that is not inconsistent with this subsection.

(9)

Congressional oversight

The Attorney General shall submit to the appropriate committees of Congress an annual report on the number of notices described in paragraph (6) received by Attorney General for the preceding 12-month period.

.

5.

Consolidation of congressional oversight provisions under the Foreign Intelligence Surveillance Act of 1978

(a)

Repeal of Congressional oversight provisions

(1)

Repeal

The Foreign Intelligence Surveillance Act of 1978 is amended by striking sections 107, 108, 306, and 406 ( 50 U.S.C. 1807 , 1808, 1826, and 1846).

(2)

Table of contents amendment

The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 is amended by striking the items relating to sections 107, 108, 306, and 406.

(b)

Semiannual report of the Attorney General

Section 601 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1871 ) is amended to read as follows:

601.

Semiannual report of the Attorney General

(a)

In general

(1)

Information

On a semiannual basis, the Attorney General shall submit to the appropriate committees of Congress a report pursuant to paragraph (2) concerning all electronic surveillance, physical searches, and uses of pen registers and trap and trace devices conducted under this Act.

(2)

Report

The report required by paragraph (1) shall include the following:

(A)

Electronic Surveillance

The total number of—

(i)

applications made for orders approving electronic surveillance under this Act;

(ii)

such orders either granted, modified, or denied;

(iii)

proposed applications for orders for electronic surveillance submitted pursuant to Rule 9(a) of the Rules of Procedure for the Foreign Intelligence Surveillance Court, or any successor rule, that are not formally presented in the form of a final application under Rule 9(b) of the Rules of Procedure for the Foreign Intelligence Surveillance Court, or any successor rule;

(iv)

named United States person targets of electronic surveillance;

(v)

emergency authorizations of electronic surveillance granted under this Act and the total number of subsequent orders approving or denying such electronic surveillance; and

(vi)

new compliance incidents arising from electronic surveillance under this Act.

(B)

Physical searches

The total number of—

(i)

applications made for orders approving physical search under this Act;

(ii)

such orders either granted, modified, or denied;

(iii)

proposed applications for orders for physical searches submitted pursuant to Rule 9(a) of the Rules of Procedure for the Foreign Intelligence Surveillance Court, or any successor rule, that are not formally presented in the form of a final application under Rule 9(b) of the Rules of Procedure for the Foreign Intelligence Surveillance Court, or any successor rule;

(iv)

named United States person targets of physical searches;

(v)

emergency authorizations of physical searches granted under this Act and the total number of subsequent orders approving or denying such physical searches; and

(vi)

new compliance incidents arising from physical searches under this Act.

(C)

Pen register and trap and trace devices

The total number of—

(i)

applications made for orders approving the use of pen registers or trap and trace devices under this Act;

(ii)

such orders either granted, modified, or denied;

(iii)

proposed applications for orders for pen registers or trap and trace devices submitted pursuant to Rule 9(a) of the Rules of Procedure for the Foreign Intelligence Surveillance Court, or any successor rule, that are not formally presented in the form of a final application under Rule 9(b) of the Rules of Procedure for the Foreign Intelligence Surveillance Court, or any successor rule;

(iv)

named United States person targets of pen registers or trap and trace devices;

(v)

emergency authorizations of the use of pen registers or trap and trace devices granted under this Act and the total number of subsequent orders approving or denying such use of pen registers or trap and trace devices; and

(vi)

new compliance incidents arising from the use of pen registers or trap and trace devices under this Act.

(D)

Compliance incidents

A summary of each compliance incident reported under subparagraphs (A)(vi), (B)(vi), and (C)(vi).

(E)

Significant legal interpretations

A summary of significant legal interpretations of this Act involving matters before the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review, including interpretations presented in applications or pleadings filed with the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review.

(b)

Submissions of significant decisions, orders, and opinions

The Attorney General shall submit to the appropriate committees of Congress a copy of any decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes a significant construction or interpretation of any provision of this Act, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, not later than 45 days after such decision, order, or opinion is issued.

(c)

Protection of national security

The Director of National Intelligence, in consultation with the Attorney General, may authorize redactions of materials described in subsection (b) that are provided to the appropriate committees of Congress if such redactions are necessary to protect properly classified information.

(d)

Availability to members of Congress

Consistent with the rules and practices of the Senate and the House of Representatives, each report submitted pursuant to subsection (a)(2) and each submission made pursuant to subsection (b) shall be made available to every member of Congress, subject to appropriate procedures for the storage and handling of classified information.

(e)

Public report

(1)

In general

Subject to paragraph (2), the Attorney General, in consultation with the Director of National Intelligence, shall make available to the public an unclassified annual summary of the reports submitted under subsection (a) that, to the maximum extent practicable consistent with the protection of classified information, includes the information contained in the report submitted pursuant to subsection (a)(2).

(2)

Minimum requirements

In each report made available to the public under paragraph (1), the Attorney General shall include, at a minimum, the information required under subparagraphs (A), (B), and (C) of subsection (a)(2), which may be presented as annual totals.

(f)

Construction

Nothing in this title may be construed to limit the authority and responsibility of an appropriate committee of Congress to obtain any information required by such committee to carry out its functions and duties.

(g)

Definitions

In this section:

(1)

Appropriate committees of Congress

The term appropriate committees of Congress means—

(A)

the Select Committee on Intelligence and the Committee on the Judiciary of the Senate; and

(B)

the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives.

(2)

Electronic surveillance

The term electronic surveillance has the meaning given that term in section 101 of this Act.

(3)

Foreign Intelligence Surveillance Court

The term Foreign Intelligence Surveillance Court means the court established under section 103(a) of this Act.

(4)

Foreign Intelligence Surveillance Court of Review

The term Foreign Intelligence Surveillance Court of Review means the court established under section 103(b) of this Act.

(5)

Pen register

The term pen register has the meaning given that term in section 401 of this Act.

(6)

Physical search

The term physical search has the meaning given that term in section 301 of this Act.

(7)

Trap and trace device

The term trap and trace device has the meaning given that term in section 401 of this Act.

(8)

United States person

The term United States person has the meaning given that term in section 101 of this Act.

.

(c)

Availability or reports and submissions

(1)

In general

Title VI of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1871 ) is amended by adding after section 601 the following:

602.

Availability of reports and submissions

(a)

Availability to members of Congress

Consistent with the rules and practices of the Senate and the House of Representatives, each submission to Congress made pursuant to section 502(b), 702(l)(1), or 707 shall be made available, to every member of Congress, subject to appropriate procedures for the storage and handling of classified information.

(b)

Public report

The Attorney General or the Director of National Intelligence, as appropriate, shall make available to the public unclassified reports that, to the maximum extent practicable consistent with the protection of classified information, include the information contained in each submission to Congress made pursuant to section 502(b), 702(l)(1), or 707.

.

(2)

Table of contents amendment

The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 is amended by inserting after the item relating to section 601 the following:

Sec. 602. Availability of reports and submissions.

.

6.

Restrictions on querying the contents of certain communications

Section 702 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881a ) is amended by adding at the end the following:

(m)

Queries

(1)

Limitation on query terms that identify a United States person

A query of the contents of communications acquired under this section with a selector known to be used by a United States person may be conducted by personnel of elements of the Intelligence Community only if the purpose of the query is to obtain foreign intelligence information or information necessary to understand foreign intelligence information or to assess its importance.

(2)

Record

(A)

In general

For any query performed pursuant to paragraph (1) a record shall be retained of the identity of the Government personnel who performed the query, the date and time of the query, and the information indicating that the purpose of the query was to obtain foreign intelligence information or information necessary to understand foreign intelligence information or to assess its importance.

(B)

Availability

Each record prepared pursuant to subparagraph (A) shall be made available to the Department of Justice, the Office of the Director of National Intelligence, appropriate Inspectors General, the Foreign Intelligence Surveillance Court, and the appropriate committees of Congress.

(3)

Construction

Nothing in this subsection may be construed—

(A)

to prohibit access to data collected under this section as may be necessary for technical assurance, data management or compliance purposes, or for the purpose of narrowing the results of queries, in which case no information produced pursuant to the order may be accessed, used, or disclosed other than for such purposes;

(B)

to limit the authority of a law enforcement agency to conduct a query for law enforcement purposes of the contents of communications acquired under this section; or

(C)

to limit the authority of an agency to conduct a query for the purpose of preventing a threat to life or serious bodily harm to any person.

(4)

Definitions

In this subsection:

(A)

Appropriate committees of Congress

The term appropriate committees of Congress means—

(i)

the Select Committee on Intelligence and the Committee on the Judiciary of the Senate; and

(ii)

the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives.

.

(B)

Content

The term content, with respect to a communication—

(i)

means any information concerning the substance, purport, or meaning of that communication; and

(ii)

does not include any dialing, routing, addressing, or signaling information.

(C)

Selector

The term selector means an identifier, such as a phone number or electronic account identifier, that is associated with a particular communicant or facility.

.

7.

Temporary targeting of persons other than United States persons traveling into the United States

(a)

In general

Section 105 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1805 ) is amended—

(1)

by redesignating subsections (f), (g), (h), and (i) as subsections (g), (h), (i), and (j), respectively; and

(2)

by inserting after subsection (e) the following:

(f)
(1)

Notwithstanding any other provision of this Act, acquisition of foreign intelligence information by targeting a non-United States person reasonably believed to be located outside the United States that was lawfully initiated by an element of the intelligence community may continue for a transitional period not to exceed 72 hours from the time when it is recognized that the non-United States person is reasonably believed to be located inside the United States and that the acquisition is subject to this title or title III of this Act, provided that the head of the element determines that there exists an exigent circumstance and—

(A)

there is reason to believe that the target of the acquisition has communicated or received or will communicate or receive foreign intelligence information relevant to the exigent circumstance; and

(B)

it is determined that a request for emergency authorization from the Attorney General in accordance with the terms of this Act is impracticable in light of the exigent circumstance.

(2)

The Director of National Intelligence or the head of an element of the intelligence community shall promptly notify the Attorney General of the decision to exercise the authority under this section and shall request emergency authorization from the Attorney General pursuant to this Act as soon as practicable, to the extent such request is warranted by the facts and circumstances.

(3)

Subject to subparagraph (4), the authority under this section to continue acquisition of foreign intelligence information is limited to 72 hours. However, if the Attorney General authorizes an emergency acquisition pursuant to this Act, then acquisition of foreign intelligence information may continue for the period of time that the Attorney General’s emergency authorization or any subsequent court order authorizing the acquisition remains in effect.

(4)

The authority to acquire foreign intelligence information under this subsection shall terminate upon any of the following, whichever occurs first—

(A)

72 hours have elapsed since the commencement of the transitional period;

(B)

the Attorney General has directed that the acquisition be terminated; or

(C)

the exigent circumstance is no longer reasonably believed to exist.

(5)

If the Attorney General authorizes an emergency authorization during the transitional period, the acquisition of foreign intelligence shall continue during any transition to, and consistent with, the Attorney General emergency authorization or court order.

(6)

Any information of or concerning unconsenting United States persons acquired during the transitional period may only be disseminated during the transitional period if necessary to investigate, prevent, reduce, or eliminate the exigent circumstance or if it indicates a threat of death or serious bodily harm to any person.

(7)

In the event that during the transition period a request for an emergency authorization from the Attorney General pursuant to this Act for continued acquisition of foreign intelligence is not approved or an order from a court is not obtained to continue the acquisition, information obtained during the transitional period shall not be retained, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

(8)

The Attorney General shall assess compliance with the requirements of paragraph (7).

.

(b)

Notification of emergency employment of electronic surveillance

Section 106(j) of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1806(j) ) is amended by striking section 105(e) and inserting subsection (e) or (f) of section 105 .

8.

Confirmation of appointment of the Director of the National Security Agency

(a)

Director of the National Security Agency

Section 2 of the National Security Agency Act of 1959 ( 50 U.S.C. 3602 ) is amended—

(1)

by inserting (b) before There; and

(2)

by inserting before subsection (b), as so designated by paragraph (1), the following:

(a)
(1)

There is a Director of the National Security Agency.

(2)

The Director of the National Security Agency shall be appointed by the President, by and with the advice and consent of the Senate.

(3)

The Director of the National Security Agency shall be the head of the National Security Agency and shall discharge such functions and duties as are provided by this Act or otherwise by law or executive order.

.

(b)

Position of importance and responsibility

The President may designate the Director of the National Security Agency as a position of importance and responsibility under section 601 of title 10, United States Code.

(c)

Effective date and applicability

(1)

In general

The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply upon the earlier of—

(A)

the date of the nomination by the President of an individual to serve as the Director of the National Security Agency, except that the individual serving as such Director as of the date of the enactment of this Act may continue to perform such duties after such date of nomination and until the individual appointed as such Director, by and with the advice and consent of the Senate, assumes the duties of such Director; or

(B)

the date of the cessation of the performance of the duties of such Director by the individual performing such duties as of the date of the enactment of this Act.

(2)

Positions of importance and responsibility

Subsection (b) shall take effect on the date of the enactment of this Act.

9.

Presidential appointment and Senate confirmation of the Inspector General of the National Security Agency

(a)

In general

The Inspector General Act of 1978 (5 U.S.C. App.) is amended—

(1)

in section 8G(a)(2), by striking the National Security Agency,; and

(2)

in section 12

(A)

in paragraph (1), by striking or the Federal Cochairpersons of the Commissions established under section 15301 of title 40, United States Code and inserting the Federal Cochairpersons of the Commissions established under section 15301 of title 40, United States Code; or the Director of the National Security Agency ; and

(B)

in paragraph (2), by striking or the Commissions established under section 15301 of title 40, United States Code and inserting the Commissions established under section 15301 of title 40, United States Code, or the National Security Agency .

(b)

Effective date; incumbent

(1)

Effective date

The amendments made by subsection (a) shall take effect on the date on which the first Director of the National Security Agency takes office on or after the date of the enactment of this Act.

(2)

Incumbent

The individual serving as Inspector General of the National Security Agency on the date of the enactment of this Act shall be eligible to be appointed by the President to a new term of service under section 3 of the Inspector General Act of 1978 (5 U.S.C. App.), by and with the advice and consent of the Senate.

10.

Annual reports on violations of law or executive order

(a)

In general

Title V of the National Security Act of 1947 ( 50 U.S.C. 3091 et seq. ) is amended by adding at the end the following:

509.

Annual report on violations of law or executive order

(a)

Annual reports required

Not later than April 1 of each year, the Director of National Intelligence shall submit to the congressional intelligence committees a report on violations of law or executive order by personnel of an element of the intelligence community that were identified during the previous calendar year.

(b)

Elements

Each report required subsection (a) shall include a description of any violation of law or executive order (including Executive Order No. 12333 (50 U.S.C. 3001 note)) by personnel of an element of the intelligence community in the course of such employment that, during the previous calendar year, was determined by the director, head, general counsel, or inspector general of any element of the intelligence community to have occurred.

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(b)

Clerical amendment

The table of sections in the first section of the National Security Act of 1947 is amended by adding after the section relating to section 508 the following:

Sec. 509. Annual report on violations of law or executive order.

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11.

Periodic review of intelligence community procedures for the acquisition, retention, and dissemination of intelligence

(a)

In general

Title V of the National Security Act of 1947 ( 50 U.S.C. 3091 et seq. ), as amended by section 10, is further amended by adding at the end the following:

510.

Periodic review of intelligence community procedures for the acquisition, retention, and dissemination of intelligence

(a)

Head of an element of the intelligence community defined

In this section, the term head of an element of the intelligence community means, as appropriate—

(1)

the head of an element of the intelligence community; or

(2)

the head of the department or agency containing such element.

(b)

Review of procedures approved by the Attorney General

(1)

Requirement for immediate review

Each head of an element of the intelligence community that has not obtained the approval of the Attorney General for the procedures, in their entirety, required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note) within 5 years prior to the date of the enactment of the FISA Improvements Act of 2013 , shall initiate, not later than 180 days after such date of enactment, a review of the procedures for such element, in accordance with paragraph (3).

(2)

Requirement for review

Not less frequently than once every 5 years, each head of an element of the intelligence community shall conduct a review of the procedures approved by the Attorney General for such element that are required by section 2.3 of Executive Order 12333 ( 50 U.S.C. 3001 note), or any successor order, in accordance with paragraph (3).

(3)

Requirements for reviews

In coordination with the Director of National Intelligence and the Attorney General, the head of an element of the intelligence community required to perform a review under paragraphs (1) or (2) shall—

(A)

review existing procedures for such element that are required by section 2.3 of Executive Order 12333 ( 50 U.S.C. 3001 note), or any successor order, to assess whether—

(i)

advances in communications or other technologies since the time the procedures were most recently approved by the Attorney General have affected the privacy protections that the procedures afford to United States persons, to include the protections afforded to United States persons whose nonpublic communications are incidentally acquired by an element of the intelligence community; or

(ii)

aspects of the existing procedures impair the acquisition, retention, or dissemination of timely, accurate, and insightful information about the activities, capabilities, plans, and intentions of foreign powers, organization, and persons, and their agents; and

(B)

propose any modifications to existing procedures for such element in order to—

(i)

clarify the guidance such procedures afford to officials responsible for the acquisition, retention, and dissemination of intelligence;

(ii)

eliminate unnecessary impediments to the acquisition, retention, and dissemination of intelligence; or

(iii)

ensure appropriate protections for the privacy of United States persons and persons located inside the United States.

(4)

Notice

The Director of National Intelligence and the Attorney General shall notify the congressional intelligence committees following the completion of each review required under this section.

(5)

Requirement to provide procedures

Upon the implementation of any modifications to procedures required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note), or any successor order, the head of the element of the intelligence community to which the modified procedures apply shall promptly provide a copy of the modified procedures to the congressional intelligence committees.

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(b)

Clerical amendment

The table of sections in the first section of the National Security Act of 1947, as amended by section 10, is further amended by adding after the section relating to section 509 the following:

Sec. 510. Periodic review of intelligence community procedures for the acquisition, retention, and dissemination of intelligence.

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12.

Privacy and Civil Liberties Oversight Board enhancements relating to the Foreign Intelligence Surveillance Act of 1978

(a)

Definitions

In this section:

(1)

Appropriate official

The term appropriate official means the appropriate official of an agency or department of the United States who is responsible for preparing or submitting a covered application.

(2)

Board

The term Board means the Privacy and Civil Liberties Oversight Board established in section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 42 U.S.C. 2000ee ).

(3)

Covered application

The term covered application means a submission to a FISA Court

(A)

that—

(i)

presents a novel or significant interpretation of the law; and

(ii)

relates to efforts to protect the United States from terrorism; and

(B)

that is—

(i)

a final application for an order under title I, III, IV, or V of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 et seq. ) or section 703 or 704 of that Act (50 U.S.C. 1881b and 1881c);

(ii)

a review of a certification or procedure under section 702 of that Act ( 50 U.S.C. 1881a ); or

(iii)

a notice of non-compliance with such an order, certification, or procedures.

(4)

FISA Court

The term FISA Court means a court established under subsection (a) or (b) of section 103 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803 ).

(b)

Notice of submissions and orders

(1)

Submission to FISA Court

Notwithstanding any provision of section 103 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803 ), if a covered application is filed with a FISA Court, the appropriate official shall provide such covered application to the Board not later than the date of such filing, provided the provision of such covered application does not delay any filing with a FISA Court.

(2)

FISA Court orders

Notwithstanding any provision of section 103 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1803 ), the appropriate official shall provide to the Board each order of a FISA Court related to a covered application.

(c)

Discretionary assessment of the Board

(1)

Notice of decision to conduct assessment

Upon receipt of a covered application under subsection (b)(1), the Board shall—

(A)

elect whether to conduct the assessment described in paragraph (3); and

(B)

submit to the appropriate official a notice of the Board's election under subparagraph (A).

(2)

Timely submission

The Board shall in a timely manner prepare and submit to the appropriate official—

(A)

the notice described in paragraph (1)(B); and

(B)

the associated assessment, if the Board elects to conduct such an assessment.

(3)

Content

An assessment of a covered application prepared by the Board shall address whether the covered application is balanced with the need to protect privacy and civil liberties, including adequate supervision and guidelines to ensure protection of privacy and civil liberties.

(d)

Annual review

The Board shall conduct an annual review of the activities of the National Security Agency related to information collection under the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 et seq. ).

(e)

Provision of communications services and office space to certain members of Privacy and Civil Liberties Oversight Board

Section 1061(g) of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 42 U.S.C. 2000ee(g) ) is amended by adding at the end the following:

(5)

Provision of communications services and office space

The Director of National Intelligence shall provide to each member of the Board who resides more than 100 miles from the District of Columbia such communications services and office space as may be necessary for the member to access and use classified information. Such services and office space shall be located at an existing secure government or contractor facility located within the vicinity of such member's place of residence.

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October 31, 2013

Read twice and placed on the calendar