S. 3420 Text - Introduced in Senate - 116th Congress (2019-2020)

To extend surveillance authorities and expand amicus curiae protections under the Foreign Intelligence Surveillance Act of 1978.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “USA FREEDOM Extension and Amici Curiae Reform Act of 2020”.

SEC. 2. Amendments to the Foreign Intelligence Surveillance Act of 1978.

Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or a repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

SEC. 3. Appointment of amici curiae and access to information.

(a) Expansion of appointment authority.—

(1) IN GENERAL.—Section 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended by striking subparagraph (A) and inserting the following:

“(A) shall appoint an individual who has been designated under paragraph (1) and who possesses expertise in privacy and civil liberties to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court—

“(i) presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate;

“(ii) presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution of the United States, unless the court issues a finding that such appointment is not appropriate;

“(iii) presents or involves a sensitive investigative matter, unless the court issues a finding that such appointment is not appropriate;

“(iv) presents a request for approval of a new program, a new technology, or a new use of existing technology, unless the court issues a finding that such appointment is not appropriate;

“(v) presents a request for reauthorization of programmatic surveillance, unless the court issues a finding that such appointment is not appropriate; or

“(vi) otherwise presents civil liberties issues, unless the court issues a finding that such appointment is not appropriate; and”.

(2) DEFINITION OF SENSITIVE INVESTIGATIVE MATTER.—Section 103(i) (50 U.S.C. 1803(i)) is amended by adding at the end the following:

“(12) DEFINITION.—In this subsection, the term ‘sensitive investigative matter’ means—

“(A) an investigative matter involving the activities of—

“(i) a domestic public official or political candidate;

“(ii) a domestic religious or political organization, or an individual prominent in such an organization; or

“(iii) the domestic news media; or

“(B) any other investigative matter that, in the judgment of the applicable court established under subsection (a) or (b), is as sensitive as an investigative matter described in subparagraph (A).”.

(b) Authority To seek review.—Section 103(i) (50 U.S.C. 1803(i)), as amended by subsection (a) of this section, is amended—

(1) in paragraph (4)—

(A) in the paragraph heading, by inserting “; authority” after “Duties”;

(B) by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), and (iii), respectively, and adjusting the margins accordingly;

(C) in the matter preceding clause (i), as so designated, by striking “the amicus curiae shall” and inserting the following: “the amicus curiae—

“(A) shall”;

(D) in subparagraph (A)(i), as so designated, by inserting before the semicolon at the end the following: “, including legal arguments regarding any colorable privacy or civil liberties interest of any aggrieved United States person”; and

(E) by striking the period at the end and inserting the following: “; and

“(B) may raise any issue with the court at any time, regardless of whether the court has requested assistance on that issue.”;

(2) by redesignating paragraphs (7) through (12) as paragraphs (8) through (13), respectively; and

(3) by inserting after paragraph (6) the following:

“(7) AUTHORITY TO SEEK REVIEW OF DECISIONS.—

“(A) FISA COURT DECISIONS.—

“(i) PETITION.—Following issuance of an order under this Act by the Foreign Intelligence Surveillance Court, an amicus curiae appointed under paragraph (2) may petition the court to certify for review to the Foreign Intelligence Surveillance Court of Review a question of law pursuant to subsection (j).

“(ii) APPOINTMENT.—Upon certification of any question of law pursuant to this subparagraph, the Court of Review shall appoint the amicus curiae to assist the Court of Review in its consideration of the certified question, unless the Court of Review issues a finding that such appointment is not appropriate.

“(B) FISA COURT OF REVIEW DECISIONS.—An amicus curiae appointed under paragraph (2) may file a petition for a writ of certiorari from the Supreme Court of the United States for review of any decision by the Foreign Intelligence Surveillance Court of Review.

“(C) DECLASSIFICATION OF REFERRALS.—For purposes of section 602, a petition filed under subparagraph (A) or (B) of this paragraph and all of its content shall be considered a decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review described in paragraph (2) of section 602(a).”.

(1) APPLICATION AND MATERIALS.—Section 103(i)(6)(A) (50 U.S.C. 1803(i)(6)(A)) is amended by striking clauses (i) and (ii) and inserting the following:

“(i) shall have access to—

“(I) the application, certification, petition, motion, and other information and supporting materials, submitted to the Foreign Intelligence Surveillance Court in connection with the matter in which the amicus curiae has been appointed, including access to any relevant legal precedent (including any such precedent that is cited by the Government, including in such an application);

“(II) any other information or materials that the court determines is relevant to the duties of the amicus curiae; and

“(III) an unredacted copy of each relevant decision made by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review in which the court decides a question of law, without regard to whether the decision is classified; and

“(ii) may make a submission to the court requesting access to any particular materials or information (or category of materials or information) that the amicus curiae believes to be relevant to the duties of the amicus curiae.”.

(2) CLARIFICATION OF ACCESS TO CERTAIN INFORMATION.—Section 103(i)(6) (50 U.S.C. 1803(i)(6)) is amended—

(A) in subparagraph (B), by striking “may” and inserting “shall”; and

(B) by striking subparagraph (C) and inserting the following:

“(C) CLASSIFIED INFORMATION.—An amicus curiae designated or appointed by the court shall have access to unredacted copies of each opinion, order, transcript, pleading, or other document of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review, including, if the individual is eligible for access to classified information, any classified documents, information, and other materials or proceedings.”.

(3) CONSULTATION AMONG AMICI CURIAE.—Section 103(i)(6) (50 U.S.C. 1803(i)(6)), as amended by paragraphs (1) and (2) of this subsection, is amended—

(A) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and

(B) by inserting after subparagraph (A) the following:

“(B) CONSULTATION.—If the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review determines that it is relevant to the duties of an amicus curiae appointed under paragraph (2), the amicus curiae may consult with one or more of the other individuals designated by the court to serve as amicus curiae pursuant to paragraph (1) regarding any of the information relevant to any assigned proceeding.”.