§1881c — Title 50 War and National Defense | U.S. Code

Summary

Allows the Foreign Intelligence Surveillance Court (FISC) to approve electronic or other intelligence collection that targets a United States person believed to be located outside the United States, but only under tight rules. No intelligence agency may intentionally target such a U.S. person when the person has a reasonable expectation of privacy and a warrant would be needed inside the United States, unless a FISC judge issues an order, the Attorney General approves an emergency action, or another specific law allows it. If the person is thought to be inside the United States while an order is active, the collection must stop unless the person is again believed to be outside. If the activity will occur inside the United States and could be done under section 1881b, it must follow that section or another applicable law. To get a FISC order, a federal officer must file a sworn written application that the Attorney General has approved. The application must include the applicant’s identity; the target’s identity or description; sworn facts saying the target is believed to be outside the United States and is a foreign power, an agent of a foreign power, or an officer or employee of a foreign power; rules for protecting private U.S. person information; a certification that the information sought is foreign intelligence and that getting that intelligence is a significant purpose; prior related applications; the requested time period (no more than 90 days per order); and certain disclosures about information that might show the application is wrong or that might be favorable to the target. A judge will issue an ex parte order only if there is probable cause for the target’s location and status, the protections for U.S. persons meet legal standards, and the application is complete and not clearly wrong. Orders last up to 90 days and can be renewed. The Attorney General may allow short emergency collections when delay would be harmful, but those end when the information is obtained, the court denies the application, or after 7 days. If an emergency or other collection is stopped and no order is issued, information from that collection generally cannot be used in court or disclosed, with narrow exceptions. The government can appeal denials to the FISC Court of Review and then seek Supreme Court review.

Title 50, §1881c

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(a)(1)The Foreign Intelligence Surveillance Court shall have jurisdiction to enter an order pursuant to subsection (c).

(2)No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the Attorney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this chapter.

(3)(A)If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States during the effective period of such order.

(B)If an acquisition for foreign intelligence purposes is to be conducted inside the United States and could be authorized under section 1881b of this title, the acquisition may only be conducted if authorized under section 1881b of this title or in accordance with another provision of this chapter other than this section.

(C)Nothing in this paragraph shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other subchapter of this chapter.

(b)Each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application as set forth in this section and shall include—

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

(2)the identity, if known, or a description of the specific United States person who is the target of the acquisition;

(3)a sworn statement of the facts and circumstances relied upon to justify the applicant’s belief that the United States person who is the target of the acquisition is—

(A)a person reasonably believed to be located outside the United States; and

(B)a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(4)a statement of proposed minimization procedures that meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate;

(5)a certification made by the Attorney General, an official specified in section 1804(a)(6) of this title, or the head of an element of the intelligence community that—

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

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

(6)a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application;

(7)a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application;

(8)a certification by the applicant that, to the best knowledge of the applicant, 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 subsection (c); and

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

(c)(1)Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court if the Court finds that—

(A)the application has been made by a Federal officer and approved by the Attorney General;

(B)on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—

(i)a person reasonably believed to be located outside the United States; and

(ii)a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(C)the proposed minimization procedures, with respect to their dissemination provisions, meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate; and

(D)the application that has been filed contains all statements and certifications required by subsection (b) and the certification provided under subsection (b)(5) is not clearly erroneous on the basis of the information furnished under subsection (b).

(2)In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(3)(A)Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1). The judge shall not have jurisdiction to review the means by which an acquisition under this section may be conducted.

(B)If the judge determines that the facts submitted under subsection (b) are insufficient to establish probable cause to issue an order under this subsection, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(C)If the judge determines that the minimization procedures applicable to dissemination of information obtained through an acquisition under this subsection do not meet the definition of minimization procedures under section 1801(h) or 1821(4) of this title, as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(D)If the judge determines that an application under subsection (b) does not contain all the required elements, or that the certification provided under subsection (b)(5) is clearly erroneous on the basis of the information furnished under subsection (b), the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(4)An order under this paragraph shall be effective for a period not to exceed 90 days and such order may be renewed for additional 90-day periods upon submission of renewal applications meeting the requirements of subsection (b).

(5)At or prior to the end of the period of time for which an order or extension is granted under this section, the judge may assess compliance with the minimization procedures referred to in paragraph (1)(C) by reviewing the circumstances under which information concerning United States persons was disseminated, provided that the judge may not inquire into the circumstances relating to the conduct of the acquisition.

(d)(1)Notwithstanding any other provision of this section, if the Attorney General reasonably determines that—

(A)an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order under that subsection can, with due diligence, be obtained, and

(B)the factual basis for the issuance of an order under this section exists,

(2)If the Attorney General authorizes an emergency acquisition under paragraph (1), the Attorney General shall require that the minimization procedures referred to in subsection (c)(1)(C) be followed.

(3)In the absence of an order under subsection (c), an emergency acquisition under paragraph (1) shall terminate when the information sought is obtained, if the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)If an application submitted to the Court pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order with respect to the target of the acquisition is issued under subsection (c), no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a United States person, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

(e)(1)The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph.

(2)The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

Notes & Related Subsidiaries

Repeal of Section Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, except as provided in section 404 of Pub. L. 110–261, set out as a note under section 1801 of this title, effective two years after Apr. 20, 2024, this section is repealed.

Editorial Notes

References in Text

This chapter, referred to in subsec. (a)(2), (3)(B), (C), was in the original “this Act”, meaning Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, known as the Foreign Intelligence Surveillance Act of 1978, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note set out under section 1801 of this title and Tables.

Amendments

2024—Subsec. (b)(3). Pub. L. 118–49, § 6(a)(4), substituted “a sworn statement of” for “a statement of” in introductory provisions. Subsec. (b)(8). Pub. L. 118–49, § 10(a)(5)(B), added par. (8). Subsec. (b)(9). Pub. L. 118–49, § 10(b)(5)(B), added par. (9).

Statutory Notes and Related Subsidiaries

Effective Date

of 2024 AmendmentAmendment by section 6(a)(4) of Pub. L. 118–49 applicable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 6(a)(5) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(a)(5)(B) of Pub. L. 118–49 applicable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(a)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title. Amendment by section 10(b)(5)(B) of Pub. L. 118–49 applicable with respect to applications made on or after the date that is 120 days after Apr. 20, 2024, see section 10(b)(6) of Pub. L. 118–49, set out as a note under section 1804 of this title.

Effective Date

of Repeal Pub. L. 110–261, title IV, § 403(b)(1), July 10, 2008, 122 Stat. 2474, as amended by Pub. L. 112–238, § 2(a)(1), Dec. 30, 2012, 126 Stat. 1631; Pub. L. 115–118, title II, § 201(a)(1), Jan. 19, 2018, 132 Stat. 19; Pub. L. 118–31, div. G, title IX, § 7902(a)(1), Dec. 22, 2023, 137 Stat. 1108; Pub. L. 118–49, § 19(a)(1), Apr. 20, 2024, 138 Stat. 891, provided that, except as provided in section 404 of Pub. L. 110–261, set out as a Transition Procedures note under section 1801 of this title, the

Repeals

made by section 403(b)(1) are effective two years after Apr. 20, 2024.

§1881c Other acquisitions targeting United States persons outside the United States

Summary

Title 50, §1881c

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Repeals

Citations & Metadata