§1881c Other Acquisitions Targeting United States Persons Outside the United States

Summary

The law lets the Foreign Intelligence Surveillance Court approve spying or other intelligence collection that targets a United States person who is believed to be outside the United States, but only when the person would otherwise have a privacy right that would need a warrant if the same search happened inside the United States. A federal officer must make a written, sworn request that the Attorney General approves. The request must say who applied, identify or describe the target, give facts showing the target is outside the United States and is a foreign power or an agent/officer of a foreign power, include rules to limit handling and sharing of U.S. persons’ information (called minimization procedures), have an official certification that the information sought is foreign intelligence and that getting it is a significant purpose, list past related applications, state how long the order is needed (no more than 90 days), and disclose any information that could cast doubt on the request or help the target. A judge will grant an order only if there is probable cause that the target is outside the United States and is a foreign power or agent. The judge may look at past and present facts about the target, but cannot treat First Amendment activity by itself as proof. The judge’s review is limited to those findings and to whether the minimization rules and required statements are complete. Orders last up to 90 days and can be renewed for 90-day periods. The Attorney General may authorize an emergency collection if delay would hurt the mission, but must tell a judge and file a formal application within 7 days. Emergency collection ends when the information is obtained, the application is denied, or after 7 days. If the court denies the application or no order is issued, most information gathered cannot be used in court or shared, except in narrow situations such as when the target is found not to be a U.S. person or the Attorney General allows use to prevent death or serious harm. The government may appeal to the Foreign Intelligence Surveillance Court of Review and then seek Supreme Court review.