[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3961 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 3961
To amend the Foreign Intelligence Surveillance Act of 1978 to reform
certain authorities and to provide greater transparency and oversight.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 14, 2024
Mr. Durbin (for himself, Mr. Lee, Ms. Hirono, Mr. Daines, Mr. Wyden,
Ms. Lummis, Ms. Baldwin, Mr. Heinrich, Ms. Warren, Mr. Markey, Mr.
Tester, Mr. Sanders, and Mr. Welch) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Foreign Intelligence Surveillance Act of 1978 to reform
certain authorities and to provide greater transparency and oversight.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Security And
Freedom Enhancement Act of 2024'' or the ``SAFE Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--PROTECTIONS FOR UNITED STATES PERSONS WHOSE COMMUNICATIONS ARE
COLLECTED UNDER SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT OF 1978
Sec. 101. Query procedure reform.
Sec. 102. Quarterly reports.
Sec. 103. Accountability procedures for incidents relating to queries
conducted by the Federal Bureau of
Investigation.
Sec. 104. Prohibition on reverse targeting of United States persons and
persons located in the United States.
Sec. 105. FISA court review of targeting decisions.
Sec. 106. Repeal of authority for the resumption of abouts collection.
Sec. 107. Extension of title VII of FISA; expiration of FISA
authorities; effective dates.
TITLE II--ADDITIONAL REFORMS RELATING TO ACTIVITIES UNDER THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978
Sec. 201. Application for an order under the Foreign Intelligence
Surveillance Act of 1978.
Sec. 202. Criminal penalties for violations of FISA.
Sec. 203. Increased penalties for civil actions.
Sec. 204. Agency procedures to ensure compliance.
Sec. 205. Limit on civil immunity for providing information,
facilities, or technical assistance to the
Government absent a court order.
TITLE III--REFORMS RELATING TO PROCEEDINGS BEFORE THE FOREIGN
INTELLIGENCE SURVEILLANCE COURT AND OTHER COURTS
Sec. 301. Foreign Intelligence Surveillance Court reform.
Sec. 302. Public disclosure and declassification of certain documents.
Sec. 303. Submission of court transcripts to Congress.
Sec. 304. Contempt power of FISC and FISCR.
TITLE IV--INDEPENDENT EXECUTIVE BRANCH OVERSIGHT
Sec. 401. Periodic audit of FISA compliance by Inspector General.
Sec. 402. Intelligence community parity and communications with Privacy
and Civil Liberties Oversight Board.
TITLE V--PROTECTIONS FOR UNITED STATES PERSONS WHOSE SENSITIVE
INFORMATION IS PURCHASED BY INTELLIGENCE AND LAW ENFORCEMENT AGENCIES
Sec. 501. Limitation on intelligence acquisition of United States
person data.
Sec. 502. Limitation on law enforcement purchase of personal data from
data brokers.
Sec. 503. Consistent protections for demands for data held by
interactive computing services.
Sec. 504. Consistent privacy protections for data held by data brokers.
Sec. 505. Protection of data entrusted to intermediary or ancillary
service providers.
TITLE VI--TRANSPARENCY
Sec. 601. Enhanced reports by Director of National Intelligence.
TITLE VII--LIMITED DELAYS IN IMPLEMENTATION
Sec. 701. Limited delays in implementation.
TITLE I--PROTECTIONS FOR UNITED STATES PERSONS WHOSE COMMUNICATIONS ARE
COLLECTED UNDER SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT OF 1978
SEC. 101. QUERY PROCEDURE REFORM.
(a) Mandatory Audits of United States Person Queries Conducted by
Federal Bureau of Investigation.--
(1) In general.--The Department of Justice shall conduct an
audit of a significant representative sample of covered
queries, as defined in paragraph (6) of section 702(f) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1881a(f)), as redesignated and amended by subsection (b) of
this section, conducted during the 180-day period beginning on
the date of enactment of this Act, and during each 180-day
period thereafter.
(2) Completion of audit.--Not later than 90 days after the
end of each 180-day period described in paragraph (1), the
Department of Justice shall complete the audit described in
such paragraph with respect to such 180-day period.
(b) Restrictions Relating to Conduct of Certain Queries by Federal
Bureau of Investigation.--Section 702(f) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881a(f)) is amended--
(1) by redesignating paragraph (3) as paragraph (6);
(2) by inserting before paragraph (6) the following:
``(5) Querying procedures applicable to federal bureau of
investigation.--For any procedures adopted under paragraph (1)
applicable to the Federal Bureau of Investigation, the Attorney
General, in consultation with the Director of National
Intelligence, shall include the following requirements:
``(A) Training.--A requirement that, prior to
conducting any query, and on an annual basis thereafter
as a prerequisite for continuing to conduct queries,
personnel of the Federal Bureau of Investigation
successfully complete training on the querying
procedures.
``(B) Additional prior approvals for sensitive
queries.--A requirement that, absent exigent
circumstances, prior to conducting certain queries,
personnel of the Federal Bureau of Investigation
receive approval, at minimum, as follows:
``(i) Approval from the Deputy Director of
the Federal Bureau of Investigation if the
query uses a query term reasonably believed to
identify a United States elected official, an
appointee of the President or the governor of a
State, a United States political candidate, a
United States political organization or a
United States person prominent in such
organization, or a United States media
organization or a United States person who is a
member of such organization.
``(ii) Approval from an attorney of the
Federal Bureau of Investigation if the query
uses a query term reasonably believed to
identify a United States religious organization
or a United States person who is prominent in
such organization.
``(iii) Approval from an attorney of the
Federal Bureau of Investigation for 2 or more
queries conducted together as a batch job.
``(C) Prior written justification.--A requirement
that--
``(i) prior to conducting a covered query,
personnel of the Federal Bureau of
Investigation generate a written statement of
the specific factual basis to support the
reasonable belief that such query meets the
standards required by the procedures adopted
under paragraph (1); and
``(ii) for each covered query, the Federal
Bureau of Investigation shall keep a record of
the query term, the date of the conduct of the
query, the identifier of the personnel
conducting the query, and such written
statement.
``(D) Affirmative election to include section 702
information in queries.--Any system of the Federal
Bureau of Investigation that stores unminimized
contents or noncontents obtained through acquisitions
authorized under subsection (a) together with contents
or noncontents obtained through other lawful means
shall be configured in a manner that--
``(i) requires personnel of the Federal
Bureau of Investigation to affirmatively elect
to include such unminimized contents or
noncontents obtained through acquisitions
authorized under subsection (a) when running a
query; or
``(ii) includes other controls reasonably
expected to prevent inadvertent queries of such
unminimized contents or noncontents.''; and
(3) in paragraph (6), as so redesignated--
(A) by redesignating subparagraph (B) as
subparagraph (C); and
(B) by inserting after subparagraph (A) the
following:
``(B) The term `covered query' means a query
conducted--
``(i) using a term associated with a United
States person or a person reasonably believed
to be located in the United States at the time
of the query or the time of the communication
or creation of the information; or
``(ii) for the purpose of finding the
information of a United States person or a
person reasonably believed to be located in the
United States at the time of the query or the
time of the communication or creation of the
information.''.
(c) Prohibition on Warrantless Access to the Communications and
Other Information of United States Persons and Persons Located in the
United States.--Section 702(f) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1881a(f)) is amended--
(1) in paragraph (1)(A) by inserting ``and the limitations
and requirements in paragraph (2)'' after ``Constitution of the
United States'';
(2) by striking paragraph (2) and inserting the following:
``(2) Prohibition on warrantless access to the
communications and other information of united states persons
and persons located in the united states.--
``(A) In general.--Except as provided in
subparagraphs (B) and (C), no officer or employee of
the United States may access communications content, or
information the compelled disclosure of which would
require a probable cause warrant if sought for law
enforcement purposes inside the United States, acquired
under subsection (a) and returned in response to a
covered query.
``(B) Exceptions for concurrent authorization,
consent, emergency situations, and certain defensive
cybersecurity queries.--
``(i) In general.--Subparagraph (A) shall
not apply if--
``(I) the person to whom the query
relates is the subject of an order or
emergency authorization authorizing
electronic surveillance, a physical
search, or an acquisition under this
section or section 105, section 304,
section 703, or section 704 of this Act
or a warrant issued pursuant to the
Federal Rules of Criminal Procedure by
a court of competent jurisdiction;
``(II)(aa) the officer or employee
accessing the communications content or
information has a reasonable belief
that--
``(AA) an emergency exists
involving an imminent threat of
death or serious bodily harm;
and
``(BB) in order to prevent
or mitigate the threat
described in subitem (AA), the
communications content or
information must be accessed
before authorization described
in subclause (I) can, with due
diligence, be obtained; and
``(bb) not later than 14 days after
the communications content or
information is accessed, a description
of the circumstances justifying the
accessing of the query results is
provided to the Foreign Intelligence
Surveillance Court, the congressional
intelligence committees, the Committee
on the Judiciary of the House of
Representatives, and the Committee on
the Judiciary of the Senate;
``(III) such person or, if such
person is incapable of providing
consent, a third party legally
authorized to consent on behalf of such
person, has provided consent for the
access on a case-by-case basis; or
``(IV)(aa) the communications
content or information is accessed and
used for the sole purpose of
identifying targeted recipients of
malicious software and preventing or
mitigating harm from such malicious
software;
``(bb) other than malicious
software and cybersecurity threat
signatures, no communications content
or other information are accessed or
reviewed; and
``(cc) the accessing of query
results is reported to the Foreign
Intelligence Surveillance Court.
``(ii) Limitations.--
``(I) Use in subsequent
proceedings.--No communications content
or information accessed under clause
(i)(II) or information derived from
such access may be used, received in
evidence, or otherwise disseminated 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, except in a proceeding that
arises from the threat that prompted
the query.
``(II) Assessment of compliance.--
Not less frequently than annually, the
Attorney General shall assess
compliance with the requirements under
subclause (I).
``(C) Matters relating to emergency queries.--
``(i) Treatment of denials.--In the event
that communications content or information
returned in response to a covered query are
accessed pursuant to an emergency authorization
described in subparagraph (B)(i)(I) and the
subsequent application to authorize electronic
surveillance, a physical search, or an
acquisition pursuant to section 105(e), section
304(e), section 703(d), or section 704(d) of
this Act is denied, or in any other case in
which communications content or information
returned in response to a covered query are
accessed in violation of this paragraph--
``(I) no communications content or
information acquired or evidence
derived from such access may be used,
received in evidence, or otherwise
disseminated in any investigation by or
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
``(II) no communications content or
information acquired or derived fro