§1802 — Title 50 War and National Defense | U.S. Code

Summary

The President, by way of the Attorney General, can approve electronic surveillance without a court order for up to one year to get foreign intelligence. The Attorney General must sign a written, sworn certificate saying the spying is aimed only at either (1) the contents of communications that are used only between foreign powers (see 1801(a)(1),(2),(3)), or (2) technical intelligence (not people’s spoken words) from places fully controlled by a foreign power. The certificate must also say there is no strong chance the spying will pick up a U.S. person’s communications and that the planned minimization rules meet the definition in 1801(h). The surveillance must follow that certificate and the minimization rules. The Attorney General must check that the rules are followed and report those checks to the House and Senate intelligence committees under 1808(a). The Attorney General must send the certificate under seal to the court in 1803(a) right away; it stays sealed unless someone asks the court for an order under 1801(h)(4) and 1804 or it is needed to decide legality under 1806(f). The Attorney General can require a communications carrier to help, keep the operation secret, limit service disruption, and keep related records under security approved by the Attorney General and the Director of National Intelligence. If the President has given written permission for the Attorney General to apply to the court in 1803, a judge may approve surveillance of a foreign power or its agent for foreign intelligence under 1805, except the court may not approve spying that is only the kind described above in (a)(1)(A) unless it might involve a U.S. person’s communications.

Title 50, §1802

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(a)(1)Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A)the electronic surveillance is solely directed at—

(i)the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or

(ii)the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;

(B)there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C)the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and

(2)An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808(a) of this title.

(3)The Attorney General shall immediately transmit under seal to the court established under section 1803(a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless—

(A)an application for a court order with respect to the surveillance is made under section 1801(h)(4) and 1804 of this title; or

(B)the certification is necessary to determine the legality of the surveillance under section 1806(f) of this title.

(4)With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—

(A)furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and

(B)maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.

(b)Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) unless such surveillance may involve the acquisition of communications of any United States person.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2010—Subsec. (a)(3), (4)(B). Pub. L. 111–259 made technical amendment to directory language of Pub. L. 108–458. See 2004 Amendment note below. 2004—Subsec. (a)(3), (4)(B). Pub. L. 108–458, as amended by Pub. L. 111–259, substituted “Director of National Intelligence” for “Director of Central Intelligence”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2004 AmendmentFor Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memorandum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of this title. Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out in an

Effective Date

of 2004 Amendment; Transition Provisions note under section 3001 of this title.

Executive Documents

Ex. Ord. No. 12139. Exercise of Certain Authority Respecting Electronic Surveillance Ex. Ord. No. 12139,

May 23, 1979, 44 F.R. 30311, as amended by Ex. Ord. No. 13383, § 1,

July 15, 2005, 70 F.R. 41933; Ex. Ord. No. 13475, § 1, Oct. 7, 2008, 73 F.R. 60095, provided: By the authority vested in me as President by section 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act [this chapter] for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows: 1–101. Pursuant to section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section. 1–102. Pursuant to section 102(b) of the Foreign Intelligence Act of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to approve applications to the court having jurisdiction under section 103 of that Act [50 U.S.C. 1803] to obtain orders for electronic surveillance for the purpose of obtaining foreign intelligence information. 1–103. Pursuant to section 104(a)(6) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804(a)(6)), the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 104(a)(6) of the Act in support of applications to conduct electronic surveillance: (a) Secretary of State. (b) Secretary of Defense. (c) Director of National Intelligence. (d) Director of the Federal Bureau of Investigation. (e) Deputy Secretary of State. (f) Deputy Secretary of Defense. (g) Director of the Central Intelligence Agency. (h) Principal Deputy Director of National Intelligence. (i) Deputy Director of the Federal Bureau of Investigation. None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President with the advice and consent of the Senate. The requirement of the preceding sentence that the named official must be appointed by the President with the advice and consent of the Senate does not apply to the Deputy Director of the Federal Bureau of Investigation. [1–104, 1–105. Amended Ex. Ord. No. 12036, formerly set out under section 401 (now 3001) of this title.]

§1802 Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

Summary

Title 50, §1802

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Executive Documents

Citations & Metadata