§1804 — Title 50 War and National Defense | U.S. Code

Summary

Requires that any request for court permission to use electronic surveillance be written, sworn to by a federal officer, filed with a judge who has authority, and approved by the Attorney General. The request must name the officer making it, identify or describe the surveillance target and locations, and give sworn facts explaining why the target is a foreign power or its agent and why those places are used by them. It must explain how accidentally collecting ordinary Americans’ communications will be limited, say what kind of information is wanted and how the surveillance will be done (including whether anyone must enter a place), list any earlier applications about the same people or places, give how long the surveillance is needed and why it should continue if more of the same information is expected, and, for U.S. persons, summarize earlier investigative steps. The request must include certifications from certain senior national security officials that the information sought is foreign intelligence, that getting it is a main purpose, that it can’t be reasonably obtained by normal methods, and what type of foreign intelligence is sought. It must also say if information came only from a political organization or from media content, and in those cases provide identification and corroboration details. The applicant must certify that the Attorney General has been told of any information that might call the application’s accuracy into question and must provide any non-repeating information that could be favorable to the target. The Attorney General may ask for other sworn statements, and the judge can ask for more information. If certain top officials (for example, the FBI Director, Defense Secretary, State Secretary, Director of National Intelligence, or CIA Director) request a review in writing, the Attorney General must personally review the application for certain kinds of targets. Those officials generally cannot delegate the power to make the request, and the Attorney General generally cannot delegate the decision to approve; if the Attorney General refuses approval, he must tell the requester in writing what must change, and the requesting official may then revise and supervise the revised application.

Title 50, §1804

War and National Defense — Source: USLM XML via OLRC

(a)Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—

(1)the identity of the Federal officer making the application;

(2)the identity, if known, or a description of the specific target of the electronic surveillance;

(3)a sworn statement of the facts and circumstances relied upon by the applicant to justify his belief that—

(A)the target of the electronic surveillance is a foreign power or an agent of a foreign power, and, in the case of a target that is a United States person alleged to be acting as an agent of a foreign power (as described in section 1801(b)(2)(B) of this title), that a violation of the criminal statutes of the United States as referred to in section 1801(b)(2)(B) of this title has occurred or is about to occur; and

(B)each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

(4)a statement of the proposed minimization procedures;

(5)a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;

(6)a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—

(A)that the certifying official deems the information sought to be foreign intelligence information;

(B)that a significant purpose of the surveillance is to obtain foreign intelligence information;

(C)that such information cannot reasonably be obtained by normal investigative techniques;

(D)that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title;

(E)including a statement of the basis for the certification that—

(i)the information sought is the type of foreign intelligence information designated; and

(ii)such information cannot reasonably be obtained by normal investigative techniques; and 11 So in original. The word “and” probably should not appear.

(F)that none of the information included in the statement described in paragraph (3) was solely produced by, derived from information produced by, or obtained using the funds of, a political organization (as such term is defined in section 527 of title 26), unless—

(i)the political organization is clearly identified in the body of the statement described in paragraph (3);

(ii)the information has been corroborated; and

(iii)the investigative techniques used to corroborate the information are clearly identified in the body of the statement described in paragraph (3); and

(G)that none of the information included in the statement described in paragraph (3) is attributable to or derived from the content of a media source unless the statement includes a clear identification of each author of that content, and where applicable, the publisher of that content, information to corroborate that which was derived from the media source, and an explanation of the investigative techniques used to corroborate the information;

(7)a summary statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;

(8)a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;

(9)a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and 1

(10)with respect to a target who is a United States person, a statement summarizing the investigative techniques carried out before making the application;

(11)in the case of an application for an extension of an order under this subchapter for a surveillance targeted against a United States person, a summary statement of the foreign intelligence information obtained pursuant to the original order (and any preceding extension thereof) as of the date of the application for the extension, or a reasonable explanation of the failure to obtain such information; and 1

(12)a certification by the applicant or declarant that, to the best knowledge of the applicant or declarant, the Attorney General or a designated attorney for the Government has been apprised of all information that might reasonably—

(A)call into question the accuracy of the application or the reasonableness of any assessment in the application conducted by the department or agency on whose behalf the application is made; or

(B)otherwise raise doubts with respect to the findings required under section 1805(a) of this title.22 So in original. The period probably should be “; and”.

(13)non-cumulative information known to the applicant or declarant that is potentially exculpatory regarding the requested legal findings or any assessment in the application.

(b)The Attorney General may require any other affidavit or certification from any other officer in connection with the application.

(c)The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 1805 of this title.

(d)(1)(A)Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in section 1801(b)(2) of this title.

(B)Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.

(C)Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.

(2)(A)If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.

(B)Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.

(C)Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2024—Subsec. (a)(3). Pub. L. 118–49, § 6(a)(1), substituted “a sworn statement of” for “a statement of” in introductory provisions. Subsec. (a)(3)(A). Pub. L. 118–49, § 6(f)(1), inserted “, and, in the case of a target that is a United States person alleged to be acting as an agent of a foreign power (as described in section 1801(b)(2)(B) of this title), that a violation of the criminal statutes of the United States as referred to in section 1801(b)(2)(B) of this title has occurred or is about to occur” after “an agent of a foreign power”. Subsec. (a)(6)(F). Pub. L. 118–49, § 6(b)(1), added subpar. (F). Subsec. (a)(6)(G). Pub. L. 118–49, § 6(c)(1), added subpar. (G). Subsec. (a)(10). Pub. L. 118–49, § 6(d)(1), added par. (10). Subsec. (a)(11). Pub. L. 118–49, § 6(e)(1), added par. (11). Subsec. (a)(12). Pub. L. 118–49, § 10(a)(1), added par. (12). Subsec. (a)(13). Pub. L. 118–49, § 10(b)(1), added par. (13). 2010—Subsec. (e)(1)(A). Pub. L. 111–259 made technical amendment to directory language of Pub. L. 108–458, § 1071(e). See 2004 Amendment note below. 2008—Subsec. (a)(2) to (4). Pub. L. 110–261, § 104(1)(A), (B), redesignated pars. (3) to (5) as (2) to (4), respectively, and struck out former par. (2) which read as follows: “the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;”. Subsec. (a)(5). Pub. L. 110–261, § 104(1)(B), (C), redesignated par. (6) as (5) and struck out “detailed” before “description”. Former par. (5) redesignated (4). Subsec. (a)(6). Pub. L. 110–261, § 104(1)(B), (D), redesignated par. (7) as (6) and substituted “Affairs,” for “Affairs or” and “Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—” for “Senate—” in introductory provisions. Former par. (6) redesignated (5). Subsec. (a)(7). Pub. L. 110–261, § 104(1)(B), (E), redesignated par. (8) as (7) and substituted “summary statement of” for “statement of”. Former par. (7) redesignated (6). Subsec. (a)(8) to (11). Pub. L. 110–261, § 104(1)(A), (B), redesignated pars. (9) and (10) as (8) and (9), respectively, and struck out par. (11) which read as follows: “whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.” Former par. (8) redesignated (7). Subsecs. (b) to (e). Pub. L. 110–261, § 104(2)–(4), redesignated subsecs. (c) to (e) as (b) to (d), respectively, in subsec. (d)(1)(A) substituted “the Director of National Intelligence, or the Director of the Central Intelligence Agency” for “or the Director of National Intelligence”, and struck out former subsec. (b) which related to exclusion of certain information respecting foreign power targets. 2006—Subsec. (a)(3). Pub. L. 109–177 inserted “specific” before “target”. 2004—Subsec. (e)(1)(A). Pub. L. 108–458, § 1071(e), as amended by Pub. L. 111–259, substituted “Director of National Intelligence” for “Director of Central Intelligence”. 2001—Subsec. (a)(7)(B). Pub. L. 107–56 substituted “a significant purpose” for “the purpose”. 2000—Subsec. (e). Pub. L. 106–567 added subsec. (e).

Statutory Notes and Related Subsidiaries

Effective Date

of 2024 Amendment Pub. L. 118–49, § 6(a)(5), Apr. 20, 2024, 138 Stat. 870, provided that: “The

Amendments

made by this subsection [amending this section and section 1823, 1881b, and 1881c of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].” Pub. L. 118–49, § 6(b)(3), Apr. 20, 2024, 138 Stat. 871, provided that: “The

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made by this subsection [amending this section and section 1823 of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].” Pub. L. 118–49, § 6(c)(3), Apr. 20, 2024, 138 Stat. 872, provided that: “The

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made by this subsection [amending this section and section 1823 of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].” Pub. L. 118–49, § 6(d)(2), Apr. 20, 2024, 138 Stat. 872, provided that: “The

Amendments

made by this subsection [amending this section] shall apply with respect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].” Pub. L. 118–49, § 6(e)(3), Apr. 20, 2024, 138 Stat. 873, provided that: “The

Amendments

made by this subsection [amending this section and section 1823 of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].” Pub. L. 118–49, § 6(f)(3), Apr. 20, 2024, 138 Stat. 873, provided that: “The

Amendments

made by this subsection [amending this section and section 1823 of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].” Pub. L. 118–49, § 10(a)(6), Apr. 20, 2024, 138 Stat. 877, provided that: “The

Amendments

made by this subsection [amending this section and section 1823, 1842, 1862, 1881b, and 1881c of this title] shall apply with respect to applications made on or after the date that is 120 days after the date of enactment of this Act [Apr. 20, 2024].” Pub. L. 118–49, § 10(b)(6), Apr. 20, 2024, 138 Stat. 878, provided that: “The

Amendments

Effective Date

of 2008 AmendmentAmendment by Pub. L. 110–261 effective July 10, 2008, except as provided in section 404 of Pub. L. 110–261, set out as a Transition Procedures note under section 1801 of this title, see section 402 of Pub. L. 110–261, set out as an

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of 2008 Amendment note under section 1801 of this title.

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. Accuracy Procedures Pub. L. 118–49, § 10(a)(7), Apr. 20, 2024, 138 Stat. 877, provided that: “Not later than 180 days after the date of the enactment of this Act [Apr. 20, 2024], the Attorney General, in consultation with the Director of the Federal Bureau of Investigation, shall issue procedures governing the review of case files, as appropriate, to ensure that applications to the Foreign Intelligence Surveillance Court under title I or III of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.[, 1821 et seq.]) that target United States persons are accurate and complete.”

Executive Documents

Designation of Certain Officials To Make CertificationsFor designation of certain officials to make certifications required by subsec. (a)(7) of this section, see Ex. Ord. No. 12139, May 23, 1979, 44 F.R. 30311, set out under section 1802 of this title.

§1804 Applications for court orders

Summary

Title 50, §1804

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