23 February 1997
Document
Source
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 16, 1996]
[Document not affected by Public Laws enacted between
January 16, 1996 and August 28, 1996]
[CITE: 50USC]
TITLE 50--WAR AND NATIONAL DEFENSE
CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE
SUBCHAPTER I--ELECTRONIC SURVEILLANCE
Sec.
1801. Definitions.
1802. Electronic surveillance authorization without court order;
certification by Attorney General; reports to
Congressional committees; transmittal under seal;
duties and compensation of communication common
carrier; applications; jurisdiction of court.
1803. Designation of judges.
(a) Court to hear applications and grant orders; record of
denial; transmittal to court of review.
(b) Court of review; record, transmittal to Supreme Court.
(c) Expeditious conduct of proceedings; security measures for
maintenance of records.
(d) Tenure.
1804. Applications for court orders.
(a) Submission by Federal officer; approval of Attorney
General; contents.
(b) Exclusion of certain information respecting foreign power
targets.
(c) Additional affidavits or certifications.
(d) Additional information.
1805. Issuance or order.
(a) Necessary findings.
(b) Specifications and directions of orders.
(c) Exclusion of certain information respecting foreign power
targets.
(d) Duration of order; extensions; review of circumstances
under which information was acquired, retained or
disseminated.
(e) Emergency orders.
(f) Testing of electronic equipment; discovering unauthorized
electronic surveillance; training of intelligence
personnel.
(g) Retention of certifications, applications and orders.
1806. Use of information.
(a) Compliance with minimization procedures; privileged
communications; lawful purposes.
(b) Statement for disclosure.
(c) Notification by United States.
(d) Notification by States or political subdivisions.
(e) Motion to suppress.
(f) In camera and ex parte review by district court.
(g) Suppression of evidence; denial of motion.
(h) Finality of orders.
(i) Destruction of unintentionally acquired information.
(j) Notification of emergency employment of electronic
surveillance; contents; postponement, suspension or
elimination.
1807. Report to Administrative Office of the United States Court
and to Congress.
1808. Report of Attorney General to Congressional committees;
limitation on authority or responsibility of
information gathering activities of Congressional
committees; report of Congressional committees to
Congress.
1809. Criminal sanctions.
(a) Prohibited activities.
(b) Defense.
(c) Penalties.
(d) Federal jurisdiction.
1810. Civil liability.
1811. Authorization during time of war.
SUBCHAPTER II--PHYSICAL SEARCHES
1821. Definitions.
1822. Authorization of physical searches for foreign
intelligence purposes.
(a) Presidential authorization.
(b) Application for order; authorization.
(c) Jurisdiction of Foreign Intelligence Surveillance Court.
(d) Court of review; record; transmittal to Supreme Court.
(e) Expeditious conduct of proceedings; security measures for
maintenance of records.
1823. Application for order.
(a) Submission by Federal officer; approval of Attorney
General; contents.
(b) Additional affidavits or certifications.
(c) Additional information.
1824. Issuance of order.
(a) Necessary findings.
(b) Specifications and directions of orders.
(c) Duration of order; extensions; assessment of compliance.
(d) Emergency orders.
(e) Retention of applications and orders.
1825. Use of information.
(a) Compliance with minimization procedures; lawful purposes.
(b) Notice of search and identification of property seized,
altered, or reproduced.
(c) Statement for disclosure.
(d) Notification by United States.
(e) Notification by States or political subdivisions.
(f) Motion to suppress.
(g) In camera and ex parte review by district court.
(h) Suppression of evidence; denial of motion.
(i) Finality of orders.
(j) Notification of emergency execution of physical search;
contents; postponement, suspension, or elimination.
1826. Congressional oversight.
1827. Penalties.
(a) Prohibited activities.
(b) Defense.
(c) Fine or imprisonment.
(d) Federal jurisdiction.
1828. Civil liability.
1829. Authorization during time of war.
Chapter Referred to in Other Sections
This chapter is referred to in title 18 sections 2232, 2511, 2522,
3121; title 47 section 1008.
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[CITE: 50USC1801]
SUBCHAPTER I--ELECTRONIC SURVEILLANCE
Sec. 1801. Definitions
As used in this subchapter:
(a) ``Foreign power'' means--
(1) a foreign government or any component thereof, whether
or not recognized by the United States;
(2) a faction of a foreign nation or nations, not
substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign
government or governments to be directed and controlled by such
foreign government or governments;
(4) a group engaged in international terrorism or activities
in preparation therefor;
(5) a foreign-based political organization, not
substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign
government or governments.
(b) ``Agent of a foreign power'' means--
(1) any person other than a United States person, who--
(A) acts in the United States as an officer or employee
of a foreign power, or as a member of a foreign power as
defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which
engages in clandestine intelligence activities in the United
States contrary to the interests of the United States, when
the circumstances of such person's presence in the United
States indicate that such person may engage in such
activities in the United States, or when such person
knowingly aids or abets any person in the conduct of such
activities or knowingly conspires with any person to engage
in such activities; or
(2) any person who--
(A) knowingly engages in clandestine intelligence
gathering activities for or on behalf of a foreign power,
which activities involve or may involve a violation of the
criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service
or network of a foreign power, knowingly engages in any
other clandestine intelligence activities for or on behalf
of such foreign power, which activities involve or are about
to involve a violation of the criminal statutes of the
United States;
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor,
for or on behalf of a foreign power; or
(D) knowingly aids or abets any person in the conduct of
activities described in subparagraph (A), (B), or (C) or
knowingly conspires with any person to engage in activities
described in subparagraph (A), (B), or (C).
(c) ``International terrorism'' means activities that--
(1) involve violent acts or acts dangerous to human life
that are a violation of the criminal laws of the United States
or of any State, or that would be a criminal violation if
committed within the jurisdiction of the United States or any
State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by
intimidation or coercion; or
(C) to affect the conduct of a government by
assassination or kidnapping; and
(3) occur totally outside the United States, or transcend
national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to coerce or
intimidate, or the locale in which their perpetrators operate or
seek asylum.
(d) ``Sabotage'' means activities that involve a violation of
chapter 105 of title 18, or that would involve such a violation if
committed against the United States.
(e) ``Foreign intelligence information'' means--
(1) information that relates to, and if concerning a United
States person is necessary to, the ability of the United States
to protect against--
(A) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign
power or an agent of a foreign power; or
(C) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power; or
(2) information with respect to a foreign power or foreign
territory that relates to, and if concerning a United States
person is necessary to--
(A) the national defense or the security of the United
States; or
(B) the conduct of the foreign affairs of the United
States.
(f) ``Electronic surveillance'' means--
(1) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire or radio
communication sent by or intended to be received by a
particular, known United States person who is in the United
States, if the contents are acquired by intentionally targeting
that United States person, under circumstances in which a person
has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire communication to
or from a person in the United States, without the consent of
any party thereto, if such acquisition occurs in the United
States;
(3) the intentional acquisition by an electronic,
mechanical, or other surveillance device of the contents of any
radio communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender
and all intended recipients are located within the United
States; or
(4) the installation or use of an electronic, mechanical, or
other surveillance device in the United States for monitoring to
acquire information, other than from a wire or radio
communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes.
(g) ``Attorney General'' means the Attorney General of the
United States (or Acting Attorney General) or the Deputy Attorney
General.
(h) ``Minimization procedures'', with respect to electronic
surveillance, means--
(1) specific procedures, which shall be adopted by the
Attorney General, that are reasonably designed in light of the
purpose and technique of the particular surveillance, to
minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information concerning
unconsenting United States persons consistent with the need of
the United States to obtain, produce, and disseminate foreign
intelligence information;
(2) procedures that require that nonpublicly available
information, which is not foreign intelligence information, as
defined in subsection (e)(1) of this section, shall not be
disseminated in a manner that identifies any United States
person, without such person's consent, unless such person's
identity is necessary to understand foreign intelligence
information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that
allow for the retention and dissemination of information that is
evidence of a crime which has been, is being, or is about to be
committed and that is to be retained or disseminated for law
enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with
respect to any electronic surveillance approved pursuant to
section 1802(a) of this title, procedures that require that no
contents of any communication to which a United States person is
a party shall be disclosed, disseminated, or used for any
purpose or retained for longer than twenty-four hours unless a
court order under section 1805 of this title is obtained or
unless the Attorney General determines that the information
indicates a threat of death or serious bodily harm to any
person.
(i) ``United States person'' means a citizen of the United
States, an alien lawfully admitted for permanent residence (as
defined in section 1101(a)(20) of title 8), an unincorporated
association a substantial number of members of which are citizens of
the United States or aliens lawfully admitted for permanent
residence, or a corporation which is incorporated in the United
States, but does not include a corporation or an association which
is a foreign power, as defined in subsection (a)(1), (2), or (3) of
this section.
(j) ``United States'', when used in a geographic sense, means
all areas under the territorial sovereignty of the United States and
the Trust Territory of the Pacific Islands.
(k) ``Aggrieved person'' means a person who is the target of an
electronic surveillance or any other person whose communications or
activities were subject to electronic surveillance.
(l) ``Wire communication'' means any communication while it is
being carried by a wire, cable, or other like connection furnished
or operated by any person engaged as a common carrier in providing
or operating such facilities for the transmission of interstate or
foreign communications.
(m) ``Person'' means any individual, including any officer or
employee of the Federal Government, or any group, entity,
association, corporation, or foreign power.
(n) ``Contents'', when used with respect to a communication,
includes any information concerning the identity of the parties to
such communication or the existence, substance, purport, or meaning
of that communication.
(o) ``State'' means any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of
the Pacific Islands, and any territory or possession of the United
States.
(Pub. L. 95-511, title I, Sec. 101, Oct. 25, 1978, 92 Stat. 1783.)
Effective Date; Exception
Section 401, formerly section 301 of Pub. L. 95-511, as renumbered
Sec. 401 and amended by Pub. L. 103-359, title VIII, Sec. 807(a)(1),
(2), Oct. 14, 1994, 108 Stat. 3443, provided that: ``The provisions of
this Act [enacting this chapter, amending sections 2511, 2518, and 2519
of Title 18, Crimes and Criminal Procedure, and enacting provision set
out as a note below] (other than title III [enacting subchapter II of
this chapter]) and the amendments made hereby shall become effective
upon the date of enactment of this Act [Oct. 25, 1978], except that any
electronic surveillance approved by the Attorney General to gather
foreign intelligence information shall not be deemed unlawful for
failure to follow the procedures of this Act, if that surveillance is
terminated or an order approving that surveillance is obtained under
title I of this Act [enacting this subchapter] within ninety days
following the designation of the first judge pursuant to section 103 of
this Act [section 1803 of this title].''
Short Title
Section 1 of Pub. L. 95-511 provided: ``That this Act [enacting this
chapter, amending sections 2511, 2518, and 2519 of Title 18, Crimes and
Criminal Procedure, and enacting provisions set out as a note above] may
be cited as the `Foreign Intelligence Surveillance Act of 1978'.''
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note
set out preceding section 1681 of Title 48, Territories and Insular
Possessions.
Section Referred to in Other Sections
This section is referred to in sections 402a, 438, 1802, 1804, 1805,
1810, 1821, 1822, 1823, 1824, 1828 of this title; title 12 section 3414;
title 15 section 1681u; title 18 sections 794, 2511, 2709.
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[CITE: 50USC1802]
Sec. 1802. Electronic surveillance authorization without court
order; certification by Attorney General; reports to
Congressional committees; transmittal under seal; duties and
compensation of communication common carrier; applications;
jurisdiction of court
(a)(1) Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a court
order under this subchapter to acquire foreign intelligence information
for periods of up to one year if the Attorney General certifies in
writing under oath that--
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between
or among foreign powers, as defined in section 1801(a)(1), (2),
or (3) of this title; or
(ii) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this
title;
(B) there is no substantial likelihood that the surveillance
will acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and any
changes thereto to the House Permanent Select Committee on Intelligence
and the Senate Select Committee on Intelligence at least thirty days
prior to their effective date, unless the Attorney General determines
immediate action is required and notifies the committees immediately of
such minimization procedures and the reason for their becoming effective
immediately.
(2) An electronic surveillance authorized by this subsection may be
conducted only in accordance with the Attorney General's certification
and the minimization procedures adopted by him. The Attorney General
shall assess compliance with such procedures and shall report such
assessments to the House Permanent Select Committee on Intelligence and
the Senate Select Committee on Intelligence under the provisions of
section 1808(a) of this title.
(3) The Attorney General shall immediately transmit under seal to
the court established under section 1803(a) of this title a copy of his
certification. Such certification shall be maintained under security
measures established by the Chief Justice with the concurrence of the
Attorney General, in consultation with the Director of Central
Intelligence, and shall remain sealed unless--
(A) an application for a court order with respect to the
surveillance is made under sections 1801(h)(4) and 1804 of this
title; or
(B) the certification is necessary to determine the legality of
the surveillance under section 1806(f) of this title.
(4) With respect to electronic surveillance authorized by this
subsection, the Attorney General may direct a specified communication
common carrier to--
(A) furnish all information, facilities, or technical assistance
necessary to accomplish the electronic surveillance in such a manner
as will protect its secrecy and produce a minimum of interference
with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished which such carrier
wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier
for furnishing such aid.
(b) Applications for a court order under this subchapter are
authorized if the President has, by written authorization, empowered the
Attorney General to approve applications to the court having
jurisdiction under section 1803 of this title, and a judge to whom an
application is made may, notwithstanding any other law, grant an order,
in conformity with section 1805 of this title, approving electronic
surveillance of a foreign power or an agent of a foreign power for the
purpose of obtaining foreign intelligence information, except that the
court shall not have jurisdiction to grant any order approving
electronic surveillance directed solely as described in paragraph (1)(A)
of subsection (a) of this section unless such surveillance may involve
the acquisition of communications of any United States person.
(Pub. L. 95-511, title I, Sec. 102, Oct. 25, 1978, 92 Stat. 1786.)
Ex. Ord. No. 12139. Exercise of Certain Authority Respecting Electronic
Surveillance
Ex. Ord. No. 12139, May 23, 1979, 44 F.R. 30311, provided:
By the authority vested in me as President by Sections 102 and 104
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and
1804), in order to provide as set forth in that Act [this chapter] for
the authorization of electronic surveillance for foreign intelligence
purposes, it is hereby ordered as follows:
1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is
authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order, but only if the Attorney
General makes the certifications required by that Section.
1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act of
1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to approve
applications to the court having jurisdiction under Section 103 of that
Act [50 U.S.C. 1803] to obtain orders for electronic surveillance for
the purpose of obtaining foreign intelligence information.
1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following
officials, each of whom is employed in the area of national security or
defense, is designated to make the certifications required by Section
104(a)(7) of the Act in support of applications to conduct electronic
surveillance:
(a) Secretary of State.
(b) Secretary of Defense.
(c) Director of Central Intelligence.
(d) Director of the Federal Bureau of Investigation.
(e) Deputy Secretary of State.
(f) Deputy Secretary of Defense.
(g) Deputy Director of Central Intelligence.
None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above certifications,
unless that official has been appointed by the President with the advice
and consent of the Senate.
1-104. Section 2-202 of Executive Order No. 12036 [set out under
section 401 of this title] is amended by inserting the following at the
end of that section: ``Any electronic surveillance, as defined in the
Foreign Intelligence Surveillance Act of 1978, shall be conducted in
accordance with that Act as well as this Order.''.
1-105. Section 2-203 of Executive Order No. 12036 [set out under
section 401 of this title] is amended by inserting the following at the
end of that section: ``Any monitoring which constitutes electronic
surveillance as defined in the Foreign Intelligence Surveillance Act of
1978 shall be conducted in accordance with that Act as well as this
Order.''.
Jimmy Carter.
Section Referred to in Other Sections
This section is referred to in sections 1801, 1805 of this title.
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[CITE: 50USC1803]
Sec. 1803. Designation of judges
(a) Court to hear applications and grant orders; record of denial;
transmittal to court of review
The Chief Justice of the United States shall publicly designate
seven district court judges from seven of the United States judicial
circuits who shall constitute a court which shall have jurisdiction to
hear applications for and grant orders approving electronic surveillance
anywhere within the United States under the procedures set forth in this
chapter, except that no judge designated under this subsection shall
hear the same application for electronic surveillance under this chapter
which has been denied previously by another judge designated under this
subsection. If any judge so designated denies an application for an
order authorizing electronic surveillance under this chapter, such judge
shall provide immediately for the record a written statement of each
reason of his decision and, on motion of the United States, the record
shall be transmitted, under seal, to the court of review established in
subsection (b) of this section.
(b) Court of review; record, transmittal to Supreme Court
The Chief Justice shall publicly designate three judges, one of whom
shall be publicly designated as the presiding judge, from the United
States district courts or courts of appeals who together shall comprise
a court of review which shall have jurisdiction to review the denial of
any application made under this chapter. If such court determines that
the application was properly denied, the court shall immediately provide
for the record a written statement of each reason for its decision and,
on petition of the United States for a writ of certiorari, the record
shall be transmitted under seal to the Supreme Court, which shall have
jurisdiction to review such decision.
(c) Expeditious conduct of proceedings; security measures for
maintenance of records
Proceedings under this chapter shall be conducted as expeditiously
as possible. The record of proceedings under this chapter, including
applications made and orders granted, shall be maintained under security
measures established by the Chief Justice in consultation with the
Attorney General and the Director of Central Intelligence.
(d) Tenure
Each judge designated under this section shall so serve for a
maximum of seven years and shall not be eligible for redesignation,
except that the judges first designated under subsection (a) of this
section shall be designated for terms of from one to seven years so that
one term expires each year, and that judges first designated under
subsection (b) of this section shall be designated for terms of three,
five, and seven years.
(Pub. L. 95-511, title I, Sec. 103, Oct. 25, 1978, 92 Stat. 1788.)
References in Text
This chapter, referred to in subsecs. (a), (b), and (c), was in the
original ``this Act'', meaning Pub. L. 95-511, Oct. 25, 1978, 92 Stat.
1783, as amended, 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.
Section Referred to in Other Sections
This section is referred to in sections 1802, 1804, 1805, 1821,
1822, 1824 of this title.
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[CITE: 50USC1804]
Sec. 1804. Applications for court orders
(a) Submission by Federal officer; approval of Attorney General;
contents
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 authority conferred on the Attorney General by the
President of the United States and the approval of the Attorney
General to make the application;
(3) the identity, if known, or a description of the target of
the electronic surveillance;
(4) a 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
(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;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information
sought and the type of communications or activities to be subjected
to the surveillance;
(7) a certification or certifications by the Assistant to the
President for National Security Affairs or 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--
(A) that the certifying official deems the information
sought to be foreign intelligence information;
(B) that the 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; and
(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;
(8) a statement of the means by which the surveillance will be
effected and a statement whether physical entry is required to
effect the surveillance;
(9) 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;
(10) 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
(11) 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.
(b) Exclusion of certain information respecting foreign power targets
Whenever the target of the electronic surveillance is a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this title, and
each of the facilities or places at which the surveillance is directed
is owned, leased, or exclusively used by that foreign power, the
application need not contain the information required by paragraphs (6),
(7)(E), (8), and (11) of subsection (a) of this section, but shall state
whether physical entry is required to effect the surveillance and shall
contain such information about the surveillance techniques and
communications or other information concerning United States persons
likely to be obtained as may be necessary to assess the proposed
minimization procedures.
(c) Additional affidavits or certifications
The Attorney General may require any other affidavit or
certification from any other officer in connection with the application.
(d) Additional information
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.
(Pub. L. 95-511, title I, Sec. 104, Oct. 25, 1978, 92 Stat. 1788.)
Designation of Certain Officials To Make Certifications
For 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.
Section Referred to in Other Sections
This section is referred to in sections 1802, 1805 of this title.
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[CITE: 50USC1805]
Sec. 1805. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1804 of this title, the
judge shall enter an ex parte order as requested or as modified
approving the electronic surveillance if he finds that--
(1) the President has authorized the Attorney General to approve
applications for electronic surveillance for foreign intelligence
information;
(2) the application has been made by a Federal officer and
approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there
is probable cause to believe that--
(A) the target of the electronic surveillance is a foreign
power or an agent of a foreign power: Provided, That no United
States person may be considered a foreign power or an agent of a
foreign power solely upon the basis of activities protected by
the first amendment to the Constitution of the United States;
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) the proposed minimization procedures meet the definition of
minimization procedures under section 1804(h) of this title; and
(5) the application which has been filed contains all statements
and certifications required by section 1804 of this title and, if
the target is a United States person, the certification or
certifications are not clearly erroneous on the basis of the
statement made under section 1804(a)(7)(E) of this title and any
other information furnished under section 1804(d) of this title.
(b) Specifications and directions of orders
An order approving an electronic surveillance under this section
shall--
(1) specify--
(A) the identity, if known, or a description of the target
of the electronic surveillance;
(B) the nature and location of each of the facilities or
places at which the electronic surveillance will be directed;
(C) the type of information sought to be acquired and the
type of communications or activities to be subjected to the
surveillance;
(D) the means by which the electronic surveillance will be
effected and whether physical entry will be used to effect the
surveillance;
(E) the period of time during which the electronic
surveillance is approved; and
(F) whenever more than one electronic, mechanical, or other
surveillance device is to be used under the order, the
authorized coverage of the devices involved and what
minimization procedures shall apply to information subject to
acquisition by each device; and
(2) direct--
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified
communication or other common carrier, landlord, custodian, or
other specified person furnish the applicant forthwith all
information, facilities, or technical assistance necessary to
accomplish the electronic surveillance in such a manner as will
protect its secrecy and produce a minimum of interference with
the services that such carrier, landlord, custodian, or other
person is providing that target of electronic surveillance;
(C) that such carrier, landlord, custodian, or other person
maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished that such
person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate,
such carrier, landlord, custodian, or other person for
furnishing such aid.
(c) Exclusion of certain information respecting foreign power targets
Whenever the target of the electronic surveillance is a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this title, and
each of the facilities or places at which the surveillance is directed
is owned, leased, or exclusively used by that foreign power, the order
need not contain the information required by subparagraphs (C), (D), and
(F) of subsection (b)(1) of this section, but shall generally describe
the information sought, the communications or activities to be subjected
to the surveillance, and the type of electronic surveillance involved,
including whether physical entry is required.
(d) Duration of order; extensions; review of circumstances under which
information was acquired, retained or disseminated
(1) An order issued under this section may approve an electronic
surveillance for the period necessary to achieve its purpose, or for
ninety days, whichever is less, except that an order under this section
shall approve an electronic surveillance targeted against a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this title, for
the period specified in the application or for one year, whichever is
less.
(2) Extensions of an order issued under this subchapter may be
granted on the same basis as an original order upon an application for
an extension and new findings made in the same manner as required for an
original order, except that an extension of an order under this chapter
for a surveillance targeted against a foreign power, as defined in
section 1801(a)(5) or (6) of this title, or against a foreign power as
defined in section 1801(a)(4) of this title that is not a United States
person, may be for a period not to exceed one year if the judge finds
probable cause to believe that no communication of any individual United
States person will be acquired during the period.
(3) At or before the end of the period of time for which electronic
surveillance is approved by an order or an extension, the judge may
assess compliance with the minimization procedures by reviewing the
circumstances under which information concerning United States persons
was acquired, retained, or disseminated.
(e) Emergency orders
Notwithstanding any other provision of this subchapter, when the
Attorney General reasonably determines that--
(1) an emergency situation exists with respect to the employment
of electronic surveillance to obtain foreign intelligence
information before an order authorizing such surveillance can with
due diligence be obtained; and
(2) the factual basis for issuance of an order under this
subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if
a judge having jurisdiction under section 1803 of this title is informed
by the Attorney General or his designee at the time of such
authorization that the decision has been made to employ emergency
electronic surveillance and if an application in accordance with this
subchapter is made to that judge as soon as practicable, but not more
than twenty-four hours after the Attorney General authorizes such
surveillance. If the Attorney General authorizes such emergency
employment of electronic surveillance, he shall require that the
minimization procedures required by this subchapter for the issuance of
a judicial order be followed. In the absence of a judicial order
approving such electronic surveillance, the surveillance shall terminate
when the information sought is obtained, when the application for the
order is denied, or after the expiration of twenty-four hours from the
time of authorization by the Attorney General, whichever is earliest. In
the event that such application for approval is denied, or in any other
case where the electronic surveillance is terminated and no order is
issued approving the surveillance, no information obtained or evidence
derived from such surveillance 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 surveillance 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. A denial of the
application made under this subsection may be reviewed as provided in
section 1803 of this title.
(f) Testing of electronic equipment; discovering unauthorized electronic
surveillance; training of intelligence personnel
Notwithstanding any other provision of this subchapter, officers,
employees, or agents of the United States are authorized in the normal
course of their official duties to conduct electronic surveillance not
targeted against the communications of any particular person or persons,
under procedures approved by the Attorney General, solely to--
(1) test the capability of electronic equipment, if--
(A) it is not reasonable to obtain the consent of the
persons incidentally subjected to the surveillance;
(B) the test is limited in extent and duration to that
necessary to determine the capability of the equipment;
(C) the contents of any communication acquired are retained
and used only for the purpose of determining the capability of
the equipment, are disclosed only to test personnel, and are
destroyed before or immediately upon completion of the test;
and:
(D) Provided, That the test may exceed ninety days only with
the prior approval of the Attorney General;
(2) determine the existence and capability of electronic
surveillance equipment being used by persons not authorized to
conduct electronic surveillance, if--
(A) it is not reasonable to obtain the consent of persons
incidentally subjected to the surveillance;
(B) such electronic surveillance is limited in extent and
duration to that necessary to determine the existence and
capability of such equipment; and
(C) any information acquired by such surveillance is used
only to enforce chapter 119 of title 18, or section 605 of title
47, or to protect information from unauthorized surveillance; or
(3) train intelligence personnel in the use of electronic
surveillance equipment, if--
(A) it is not reasonable to--
(i) obtain the consent of the persons incidentally
subjected to the surveillance;
(ii) train persons in the course of surveillances
otherwise authorized by this subchapter; or
(iii) train persons in the use of such equipment without
engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and
duration to that necessary to train the personnel in the use of
the equipment; and
(C) no contents of any communication acquired are retained
or disseminated for any purpose, but are destroyed as soon as
reasonably possible.
(g) Retention of certifications, applications and orders
Certifications made by the Attorney General pursuant to section
1802(a) of this title and applications made and orders granted under
this subchapter shall be retained for a period of at least ten years
from the date of the certification or application.
(Pub. L. 95-511, title I, Sec. 105, Oct. 25, 1978, 92 Stat. 1790; Pub.
L. 98-549, Sec. 6(b)(3), Oct. 30, 1984, 98 Stat. 2804.)
Amendments
1984--Subsec. (f)(2)(C). Pub. L. 98-549 substituted ``section 705''
for ``section 605'' in the original to accommodate renumbering of
sections in subchapter VI (section 601 et seq.) of chapter 5 of Title
47, Telegraphs, Telephones, and Radiotelegraphs, by section 6(a) of Pub.
L. 98-549. Because both sections translate as ``section 605 of Title
47'', the amendment by Pub. L. 98-549 resulted in no change in text.
Effective Date of 1984 Amendment
Amendment by Pub. L. 98-549 effective 60 days after Oct. 30, 1984,
except where otherwise expressly provided, see section 9(a) of Pub. L.
98-549, set out as a note under section 521 of Title 47, Telegraphs,
Telephones, and Radiotelegraphs.
Section Referred to in Other Sections
This section is referred to in sections 1801, 1802, 1804, 1806 of
this title; title 47 section 1002.
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[CITE: 50USC1806]
Sec. 1806. Use of information
(a) Compliance with minimization procedures; privileged communications;
lawful purposes
Information acquired from an electronic surveillance conducted
pursuant to this subchapter concerning any United States person may be
used and disclosed by Federal officers and employees without the consent
of the United States person only in accordance with the minimization
procedures required by this subchapter. No otherwise privileged
communication obtained in accordance with, or in violation of, the
provisions of this subchapter shall lose its privileged character. No
information acquired from an electronic surveillance pursuant to this
subchapter may be used or disclosed by Federal officers or employees
except for lawful purposes.
(b) Statement for disclosure
No information acquired pursuant to this subchapter shall be
disclosed for law enforcement purposes unless such disclosure is
accompanied by a statement that such information, or any information
derived therefrom, may only be used in a criminal proceeding with the
advance authorization of the Attorney General.
(c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise
use or disclose in any trial, hearing, or other proceeding in or before
any court, department, officer, agency, regulatory body, or other
authority of the United States, against an aggrieved person, any
information obtained or derived from an electronic surveillance of that
aggrieved person pursuant to the authority of this subchapter, the
Government shall, prior to the trial, hearing, or other proceeding or at
a reasonable time prior to an effort to so disclose or so use that
information or submit it in evidence, notify the aggrieved person and
the court or other authority in which the information is to be disclosed
or used that the Government intends to so disclose or so use such
information.
(d) Notification by States or political subdivisions
Whenever any State or political subdivision thereof intends to enter
into evidence or otherwise use or disclose in any trial, hearing, or
other proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of a State or a political
subdivision thereof, against an aggrieved person any information
obtained or derived from an electronic surveillance of that aggrieved
person pursuant to the authority of this subchapter, the State or
political subdivision thereof shall notify the aggrieved person, the
court or other authority in which the information is to be disclosed or
used, and the Attorney General that the State or political subdivision
thereof intends to so disclose or so use such information.
(e) Motion to suppress
Any person against whom evidence obtained or derived from an
electronic surveillance to which he is an aggrieved person is to be, or
has been, introduced or otherwise used or disclosed in any trial,
hearing, or other proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of the United
States, a State, or a political subdivision thereof, may move to
suppress the evidence obtained or derived from such electronic
surveillance on the grounds that--
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of
authorization or approval.
Such a motion shall be made before the trial, hearing, or other
proceeding unless there was no opportunity to make such a motion or the
person was not aware of the grounds of the motion.
(f) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to
subsection (c) or (d) of this section, or whenever a motion is made
pursuant to subsection (e) of this section, or whenever any motion or
request is made by an aggrieved person pursuant to any other statute or
rule of the United States or any State before any court or other
authority of the United States or any State to discover or obtain
applications or orders or other materials relating to electronic
surveillance or to discover, obtain, or suppress evidence or information
obtained or derived from electronic surveillance under this chapter, the
United States district court or, where the motion is made before another
authority, the United States district court in the same district as the
authority, shall, notwithstanding any other law, if the Attorney General
files an affidavit under oath that disclosure or an adversary hearing
would harm the national security of the United States, review in camera
and ex parte the application, order, and such other materials relating
to the surveillance as may be necessary to determine whether the
surveillance of the aggrieved person was lawfully authorized and
conducted. In making this determination, the court may disclose to the
aggrieved person, under appropriate security procedures and protective
orders, portions of the application, order, or other materials relating
to the surveillance only where such disclosure is necessary to make an
accurate determination of the legality of the surveillance.
(g) Suppression of evidence; denial of motion
If the United States district court pursuant to subsection (f) of
this section determines that the surveillance was not lawfully
authorized or conducted, it shall, in accordance with the requirements
of law, suppress the evidence which was unlawfully obtained or derived
from electronic surveillance of the aggrieved person or otherwise grant
the motion of the aggrieved person. If the court determines that the
surveillance was lawfully authorized and conducted, it shall deny the
motion of the aggrieved person except to the extent that due process
requires discovery or disclosure.
(h) Finality of orders
Orders granting motions or requests under subsection (g) of this
section, decisions under this section that electronic surveillance was
not lawfully authorized or conducted, and orders of the United States
district court requiring review or granting disclosure of applications,
orders, or other materials relating to a surveillance shall be final
orders and binding upon all courts of the United States and the several
States except a United States court of appeals and the Supreme Court.
(i) Destruction of unintentionally acquired information
In circumstances involving the unintentional acquisition by an
electronic, mechanical, or other surveillance device of the contents of
any radio communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required for
law enforcement purposes, and if both the sender and all intended
recipients are located within the United States, such contents shall be
destroyed upon recognition, unless the Attorney General determines that
the contents indicate a threat of death or serious bodily harm to any
person.
(j) Notification of emergency employment of electronic surveillance;
contents; postponement, suspension or elimination
If an emergency employment of electronic surveillance is authorized
under section 1805(e) of this title and a subsequent order approving the
surveillance is not obtained, the judge shall cause to be served on any
United States person named in the application and on such other United
States persons subject to electronic surveillance as the judge may
determine in his discretion it is in the interest of justice to serve,
notice of--
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not
obtained.
On an ex parte showing of good cause to the judge the serving of the
notice required by this subsection may be postponed or suspended for a
period not to exceed ninety days. Thereafter, on a further ex parte
showing of good cause, the court shall forego ordering the serving of
the notice required under this subsection.
(Pub. L. 95-511, title I, Sec. 106, Oct. 25, 1978, 92 Stat. 1793.)
Section Referred to in Other Sections
This section is referred to in section 1802 of this title.
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[CITE: 50USC1807]
Sec. 1807. Report to Administrative Office of the United States
Court and to Congress
In April of each year, the Attorney General shall transmit to the
Administrative Office of the United States Court and to Congress a
report setting forth with respect to the preceding calendar year--
(a) the total number of applications made for orders and
extensions of orders approving electronic surveillance under this
subchapter; and
(b) the total number of such orders and extensions either
granted, modified, or denied.
(Pub. L. 95-511, title I, Sec. 107, Oct. 25, 1978, 92 Stat. 1795.)
-------------------------------------------------------------------------
[CITE: 50USC1808]
Sec. 1808. Report of Attorney General to Congressional
committees; limitation on authority or responsibility of
information gathering activities of Congressional committees;
report of Congressional committees to Congress
(a) On a semiannual basis the Attorney General shall fully inform
the House Permanent Select Committee on Intelligence and the Senate
Select Committee on Intelligence concerning all electronic surveillance
under this subchapter. Nothing in this subchapter shall be deemed to
limit the authority and responsibility of the appropriate committees of
each House of Congress to obtain such information as they may need to
carry out their respective functions and duties.
(b) On or before one year after October 25, 1978, and on the same
day each year for four years thereafter, the Permanent Select Committee
on Intelligence and the Senate Select Committee on Intelligence shall
report respectively to the House of Representatives and the Senate,
concerning the implementation of this chapter. Said reports shall
include but not be limited to an analysis and recommendations concerning
whether this chapter should be (1) amended, (2) repealed, or (3)
permitted to continue in effect without amendment.
(Pub. L. 95-511, title I, Sec. 108, Oct. 25, 1978, 92 Stat. 1795.)
Section Referred to in Other Sections
This section is referred to in section 1802 of this title.
-------------------------------------------------------------------------
[CITE: 50USC1809]
Sec. 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally--
(1) engages in electronic surveillance under color of law except
as authorized by statute; or
(2) discloses or uses information obtained under color of law by
electronic surveillance, knowing or having reason to know that the
information was obtained through electronic surveillance not
authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this
section that the defendant was a law enforcement or investigative
officer engaged in the course of his official duties and the electronic
surveillance was authorized by and conducted pursuant to a search
warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not
more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if
the person committing the offense was an officer or employee of the
United States at the time the offense was committed.
(Pub. L. 95-511, title I, Sec. 109, Oct. 25, 1978, 92 Stat. 1796.)
Section Referred to in Other Sections
This section is referred to in section 1810 of this title.
-------------------------------------------------------------------------
[CITE: 50USC1810]
Sec. 1810. Civil liability
An aggrieved person, other than a foreign power or an agent of a
foreign power, as defined in section 1801(a) or (b)(1)(A) of this title,
respectively, who has been subjected to an electronic surveillance or
about whom information obtained by electronic surveillance of such
person has been disclosed or used in violation of section 1809 of this
title shall have a cause of action against any person who committed such
violation and shall be entitled to recover--
(a) actual damages, but not less than liquidated damages of
$1,000 or $100 per day for each day of violation, whichever is
greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and
litigation costs reasonably incurred.
(Pub. L. 95-511, title I, Sec. 110, Oct. 25, 1978, 92 Stat. 1796.)
-------------------------------------------------------------------------
[CITE: 50USC1811]
Sec. 1811. Authorization during time of war
Notwithstanding any other law, the President, through the Attorney
General, may authorize electronic surveillance without a court order
under this subchapter to acquire foreign intelligence information for a
period not to exceed fifteen calendar days following a declaration of
war by the Congress.
(Pub. L. 95-511, title I, Sec. 111, Oct. 25, 1978, 92 Stat. 1796.)
-------------------------------------------------------------------------
[CITE: 50USC1821]
SUBCHAPTER II--PHYSICAL SEARCHES
Sec. 1821. Definitions
As used in this subchapter:
(1) The terms ``foreign power'', ``agent of a foreign power'',
``international terrorism'', ``sabotage'', ``foreign intelligence
information'', ``Attorney General'', ``United States person'',
``United States'', ``person'', and ``State'' shall have the same
meanings as in section 1801 of this title, except as specifically
provided by this subchapter.
(2) ``Aggrieved person'' means a person whose premises,
property, information, or material is the target of physical search
or any other person whose premises, property, information, or
material was subject to physical search.
(3) ``Foreign Intelligence Surveillance Court'' means the court
established by section 1803(a) of this title.
(4) ``Minimization procedures'' with respect to physical search,
means--
(A) specific procedures, which shall be adopted by the
Attorney General, that are reasonably designed in light of the
purposes and technique of the particular physical search, to
minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information concerning
unconsenting United States persons consistent with the need of
the United States to obtain, produce, and disseminate foreign
intelligence information;
(B) procedures that require that nonpublicly available
information, which is not foreign intelligence information, as
defined in section 1801(e)(1) of this title, shall not be
disseminated in a manner that identifies any United States
person, without such person's consent, unless such person's
identity is necessary to understand such foreign intelligence
information or assess its importance;
(C) notwithstanding subparagraphs (A) and (B), procedures
that allow for the retention and dissemination of information
that is evidence of a crime which has been, is being, or is
about to be committed and that is to be retained or disseminated
for law enforcement purposes; and
(D) notwithstanding subparagraphs (A), (B), and (C), with
respect to any physical search approved pursuant to section
1822(a) of this title, procedures that require that no
information, material, or property of a United States person
shall be disclosed, disseminated, or used for any purpose or
retained for longer than 24 hours unless a court order under
section 1824 of this title is obtained or unless the Attorney
General determines that the information indicates a threat of
death or serious bodily harm to any person.
(5) ``Physical search'' means any physical intrusion within the
United States into premises or property (including examination of
the interior of property by technical means) that is intended to
result in a seizure, reproduction, inspection, or alteration of
information, material, or property, under circumstances in which a
person has a reasonable expectation of privacy and a warrant would
be required for law enforcement purposes, but does not include (A)
``electronic surveillance'', as defined in section 1801(f) of this
title, or (B) the acquisition by the United States Government of
foreign intelligence information from international or foreign
communications, or foreign intelligence activities conducted in
accordance with otherwise applicable Federal law involving a foreign
electronic communications system, utilizing a means other than
electronic surveillance as defined in section 1801(f) of this title.
(Pub. L. 95-511, title III, Sec. 301, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3443.)
Prior Provisions
A prior section 301 of Pub. L. 95-511 was renumbered section 401 and
is set out as a note under section 1801 of this title.
Effective Date
Section 807(c) of Pub. L. 103-359 provided that: ``The amendments
made by subsections (a) and (b) [enacting this subchapter and amending
provisions set out as a note under section 1801 of this title] shall
take effect 90 days after the date of enactment of this Act [Oct. 14,
1994], except that any physical search approved by the Attorney General
of the United States to gather foreign intelligence information shall
not be deemed unlawful for failure to follow the procedures of title III
of the Foreign Intelligence Surveillance Act of 1978 [this subchapter]
(as added by this Act), if that search is conducted within 180 days
after the date of enactment of this Act pursuant to regulations issued
by the Attorney General, which were in the possession of the Select
Committee on Intelligence of the Senate and the Permanent Select
Committee on Intelligence of the House of Representatives before the
date of enactment of this Act.''
Section Referred to in Other Sections
This section is referred to in section 1822 of this title.
-------------------------------------------------------------------------
[CITE: 50USC1822]
Sec. 1822. Authorization of physical searches for foreign
intelligence purposes
(a) Presidential authorization
(1) Notwithstanding any other provision of law, the President,
acting through the Attorney General, may authorize physical searches
without a court order under this subchapter to acquire foreign
intelligence information for periods of up to one year if--
(A) the Attorney General certifies in writing under oath that--
(i) the physical search is solely directed at premises,
information, material, or property used exclusively by, or under
the open and exclusive control of, a foreign power or powers (as
defined in section 1801(a)(1), (2), or (3) of this title);
(ii) there is no substantial likelihood that the physical
search will involve the premises, information, material, or
property of a United States person; and
(iii) the proposed minimization procedures with respect to
such physical search meet the definition of minimization
procedures under paragraphs (1) through (4) \1\ of section
1821(4) of this title; and
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``subparagraphs (A) through
(D)''.
(B) the Attorney General reports such minimization procedures
and any changes thereto to the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate at least 30 days before
their effective date, unless the Attorney General determines that
immediate action is required and notifies the committees immediately
of such minimization procedures and the reason for their becoming
---------------------------------------------------------------------------
effective immediately.
(2) A physical search authorized by this subsection may be conducted
only in accordance with the certification and minimization procedures
adopted by the Attorney General. The Attorney General shall assess
compliance with such procedures and shall report such assessments to the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the Senate
under the provisions of section 1826 of this title.
(3) The Attorney General shall immediately transmit under seal to
the Foreign Intelligence Surveillance Court a copy of the certification.
Such certification shall be maintained under security measures
established by the Chief Justice of the United States with the
concurrence of the Attorney General, in consultation with the Director
of Central Intelligence, and shall remain sealed unless--
(A) an application for a court order with respect to the
physical search is made under section 1821(4) of this title and
section 1823 of this title; or
(B) the certification is necessary to determine the legality of
the physical search under section 1825(g) of this title.
(4)(A) With respect to physical searches authorized by this
subsection, the Attorney General may direct a specified landlord,
custodian, or other specified person to--
(i) furnish all information, facilities, or assistance necessary
to accomplish the physical search in such a manner as will protect
its secrecy and produce a minimum of interference with the services
that such landlord, custodian, or other person is providing the
target of the physical search; and
(ii) maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the search or the aid furnished that such person wishes
to retain.
(B) The Government shall compensate, at the prevailing rate, such
landlord, custodian, or other person for furnishing such aid.
(b) Application for order; authorization
Applications for a court order under this subchapter are authorized
if the President has, by written authorization, empowered the Attorney
General to approve applications to the Foreign Intelligence Surveillance
Court. Notwithstanding any other provision of law, a judge of the court
to whom application is made may grant an order in accordance with
section 1824 of this title approving a physical search in the United
States of the premises, property, information, or material of a foreign
power or an agent of a foreign power for the purpose of collecting
foreign intelligence information.
(c) Jurisdiction of Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court shall have jurisdiction
to hear applications for and grant orders approving a physical search
for the purpose of obtaining foreign intelligence information anywhere
within the United States under the procedures set forth in this
subchapter, except that no judge shall hear the same application which
has been denied previously by another judge designated under section
1803(a) of this title. If any judge so designated denies an application
for an order authorizing a physical search under this subchapter, such
judge shall provide immediately for the record a written statement of
each reason for such decision and, on motion of the United States, the
record shall be transmitted, under seal, to the court of review
established under section 1803(b) of this title.
(d) Court of review; record; transmittal to Supreme Court
The court of review established under section 1803(b) of this title
shall have jurisdiction to review the denial of any application made
under this subchapter. If such court determines that the application was
properly denied, the court shall immediately provide for the record a
written statement of each reason for its decision and, on petition of
the United States for a writ of certiorari, the record shall be
transmitted under seal to the Supreme Court, which shall have
jurisdiction to review such decision.
(e) Expeditious conduct of proceedings; security measures for
maintenance of records
Judicial proceedings under this subchapter shall be concluded as
expeditiously as possible. The record of proceedings under this
subchapter, including applications made and orders granted, shall be
maintained under security measures established by the Chief Justice of
the United States in consultation with the Attorney General and the
Director of Central Intelligence.
(Pub. L. 95-511, title III, Sec. 302, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3444.)
Ex. Ord. No. 12949. Foreign Intelligence Physical Searches
Ex. Ord. No. 12949, Feb. 9, 1995, 60 F.R. 8169, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States, including sections 302 and 303 of the
Foreign Intelligence Surveillance Act of 1978 (``Act'') (50 U.S.C. 1801,
et seq.), as amended by Public Law 103-359 [50 U.S.C. 1822, 1823], and
in order to provide for the authorization of physical searches for
foreign intelligence purposes as set forth in the Act, it is hereby
ordered as follows:
Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney
General is authorized to approve physical searches, without a court
order, to acquire foreign intelligence information for periods of up to
one year, if the Attorney General makes the certifications required by
that section.
Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General
is authorized to approve applications to the Foreign Intelligence
Surveillance Court under section 303 of the Act to obtain orders for
physical searches for the purpose of collecting foreign intelligence
information.
Sec. 3. Pursuant to section 303(a)(7) of the Act, the following
officials, each of whom is employed in the area of national security or
defense, is designated to make the certifications required by section
303(a)(7) of the Act in support of applications to conduct physical
searches:
(a) Secretary of State;
(b) Secretary of Defense;
(c) Director of Central Intelligence;
(d) Director of the Federal Bureau of Investigation,
(e) Deputy Secretary of State;
(f) Deputy Secretary of Defense; and
(g) Deputy Director of Central Intelligence.
None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above certifications,
unless that official has been appointed by the President, by and with
the advice and consent of the Senate.
William J. Clinton.
Section Referred to in Other Sections
This section is referred to in sections 1821, 1824 of this title.
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[CITE: 50USC1823]
Sec. 1823. Application for order
(a) Submission by Federal officer; approval of Attorney General;
contents
Each application for an order approving a physical search under this
subchapter shall be made by a Federal officer in writing upon oath or
affirmation to a judge of the Foreign Intelligence Surveillance Court.
Each application shall require the approval of the Attorney General
based upon the Attorney General's finding that it satisfies the criteria
and requirements for such application as set forth in this subchapter.
Each application shall include--
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the
President and the approval of the Attorney General to make the
application;
(3) the identity, if known, or a description of the target of
the search, and a detailed description of the premises or property
to be searched and of the information, material, or property to be
seized, reproduced, or altered;
(4) a statement of the facts and circumstances relied upon by
the applicant to justify the applicant's belief that--
(A) the target of the physical search is a foreign power or
an agent of a foreign power;
(B) the premises or property to be searched contains foreign
intelligence information; and
(C) the premises or property to be searched is owned, used,
possessed by, or is in transit to or from a foreign power or an
agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a statement of the nature of the foreign intelligence sought
and the manner in which the physical search is to be conducted;
(7) a certification or certifications by the Assistant to the
President for National Security Affairs or an executive branch
official or officials designated by the President from among those
executive branch officers employed in the area of national security
or defense and appointed by the President, by and with the advice
and consent of the Senate--
(A) that the certifying official deems the information
sought to be foreign intelligence information;
(B) that the purpose of the search 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; and
(E) includes a statement explaining the basis for the
certifications required by subparagraphs (C) and (D);
(8) where the physical search involves a search of the residence
of a United States person, the Attorney General shall state what
investigative techniques have previously been utilized to obtain the
foreign intelligence information concerned and the degree to which
these techniques resulted in acquiring such information; and
(9) a statement of the facts concerning all previous
applications that have been made to any judge under this subchapter
involving any of the persons, premises, or property specified in the
application, and the action taken on each previous application.
(b) Additional affidavits or certifications
The Attorney General may require any other affidavit or
certification from any other officer in connection with the application.
(c) Additional information
The judge may require the applicant to furnish such other
information as may be necessary to make the determinations required by
section 1824 of this title.
(Pub. L. 95-511, title III, Sec. 303, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3446.)
Officials Designated To Make Certifications
For provisions listing officials designated by President to make
certifications required by subsec. (a)(7) of this section, see Ex. Ord.
No. 12949, Sec. 3, Feb. 9, 1995, 60 F.R. 8169, set out as a note under
section 1822 of this title.
Section Referred to in Other Sections
This section is referred to in sections 1822, 1824 of this title.
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[CITE: 50USC1824]
Sec. 1824. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1823 of this title, the
judge shall enter an ex parte order as requested or as modified
approving the physical search if the judge finds that--
(1) the President has authorized the Attorney General to approve
applications for physical searches for foreign intelligence
purposes;
(2) the application has been made by a Federal officer and
approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there
is probable cause to believe that--
(A) the target of the physical search is a foreign power or
an agent of a foreign power, except that no United States person
may be considered an agent of a foreign power solely upon the
basis of activities protected by the first amendment to the
Constitution of the United States; and
(B) the premises or property to be searched is owned, used,
possessed by, or is in transit to or from an agent of a foreign
power or a foreign power;
(4) the proposed minimization procedures meet the definition of
minimization contained in this subchapter; and
(5) the application which has been filed contains all statements
and certifications required by section 1823 of this title, and, if
the target is a United States person, the certification or
certifications are not clearly erroneous on the basis of the
statement made under section 1823(a)(7)(E) of this title and any
other information furnished under section 1823(c) of this title.
(b) Specifications and directions of orders
An order approving a physical search under this section shall--
(1) specify--
(A) the identity, if known, or a description of the target
of the physical search;
(B) the nature and location of each of the premises or
property to be searched;
(C) the type of information, material, or property to be
seized, altered, or reproduced;
(D) a statement of the manner in which the physical search
is to be conducted and, whenever more than one physical search
is authorized under the order, the authorized scope of each
search and what minimization procedures shall apply to the
information acquired by each search; and
(E) the period of time during which physical searches are
approved; and
(2) direct--
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified
landlord, custodian, or other specified person furnish the
applicant forthwith all information, facilities, or assistance
necessary to accomplish the physical search in such a manner as
will protect its secrecy and produce a minimum of interference
with the services that such landlord, custodian, or other person
is providing the target of the physical search;
(C) that such landlord, custodian, or other person maintain
under security procedures approved by the Attorney General and
the Director of Central Intelligence any records concerning the
search or the aid furnished that such person wishes to retain;
(D) that the applicant compensate, at the prevailing rate,
such landlord, custodian, or other person for furnishing such
aid; and
(E) that the Federal officer conducting the physical search
promptly report to the court the circumstances and results of
the physical search.
(c) Duration of order; extensions; assessment of compliance
(1) An order issued under this section may approve a physical search
for the period necessary to achieve its purpose, or for forty-five days,
whichever is less, except that an order under this section shall approve
a physical search targeted against a foreign power, as defined in
paragraph (1), (2), or (3) of section 1801(a) of this title, for the
period specified in the application or for one year, whichever is less.
(2) Extensions of an order issued under this subchapter may be
granted on the same basis as the original order upon an application for
an extension and new findings made in the same manner as required for
the original order, except that an extension of an order under this
chapter for a physical search targeted against a foreign power, as
defined in section 1801(a)(5) or (6) of this title, or against a foreign
power, as defined in section 1801(a)(4) of this title, that is not a
United States person, may be for a period not to exceed one year if the
judge finds probable cause to believe that no property of any individual
United States person will be acquired during the period.
(3) At or before the end of the period of time for which a physical
search is approved by an order or an extension, or at any time after a
physical search is carried out, the judge may assess compliance with the
minimization procedures by reviewing the circumstances under which
information concerning United States persons was acquired, retained, or
disseminated.
(d) Emergency orders
(1)(A) Notwithstanding any other provision of this subchapter,
whenever the Attorney General reasonably makes the determination
specified in subparagraph (B), the Attorney General may authorize the
execution of an emergency physical search if--
(i) a judge having jurisdiction under section 1803 of this title
is informed by the Attorney General or the Attorney General's
designee at the time of such authorization that the decision has
been made to execute an emergency search, and
(ii) an application in accordance with this subchapter is made
to that judge as soon as practicable but not more than 24 hours
after the Attorney General authorizes such search.
(B) The determination referred to in subparagraph (A) is a
determination that--
(i) an emergency situation exists with respect to the execution
of a physical search to obtain foreign intelligence information
before an order authorizing such search can with due diligence be
obtained, and
(ii) the factual basis for issuance of an order under this
subchapter to approve such a search exists.
(2) If the Attorney General authorizes an emergency search under
paragraph (1), the Attorney General shall require that the minimization
procedures required by this subchapter for the issuance of a judicial
order be followed.
(3) In the absence of a judicial order approving such a physical
search, the search shall terminate the earlier of--
(A) the date on which the information sought is obtained;
(B) the date on which the application for the order is denied;
or
(C) the expiration of 24 hours from the time of authorization by
the Attorney General.
(4) In the event that such application for approval is denied, or in
any other case where the physical search is terminated and no order is
issued approving the search, no information obtained or evidence derived
from such search 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 search 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. A denial of the application made under this
subsection may be reviewed as provided in section 1822 of this title.
(e) Retention of applications and orders
Applications made and orders granted under this subchapter shall be
retained for a period of at least 10 years from the date of the
application.
(Pub. L. 95-511, title III, Sec. 304, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3447.)
References in Text
This chapter, referred to in subsec. (c)(2), was in the original
``this Act'', meaning Pub. L. 95-511, Oct. 25, 1978, 92 Stat. 1783, as
amended, 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.
Section Referred to in Other Sections
This section is referred to in sections 1821, 1822, 1823, 1825 of
this title.
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[CITE: 50USC1825]
Sec. 1825. Use of information
(a) Compliance with minimization procedures; lawful purposes
Information acquired from a physical search conducted pursuant to
this subchapter concerning any United States person may be used and
disclosed by Federal officers and employees without the consent of the
United States person only in accordance with the minimization procedures
required by this subchapter. No information acquired from a physical
search pursuant to this subchapter may be used or disclosed by Federal
officers or employees except for lawful purposes.
(b) Notice of search and identification of property seized, altered, or
reproduced
Where a physical search authorized and conducted pursuant to section
1824 of this title involves the residence of a United States person,
and, at any time after the search the Attorney General determines there
is no national security interest in continuing to maintain the secrecy
of the search, the Attorney General shall provide notice to the United
States person whose residence was searched of the fact of the search
conducted pursuant to this chapter and shall identify any property of
such person seized, altered, or reproduced during such search.
(c) Statement for disclosure
No information acquired pursuant to this subchapter shall be
disclosed for law enforcement purposes unless such disclosure is
accompanied by a statement that such information, or any information
derived therefrom, may only be used in a criminal proceeding with the
advance authorization of the Attorney General.
(d) Notification by United States
Whenever the United States intends to enter into evidence or
otherwise use or disclose in any trial, hearing, or other proceeding in
or before any court, department, officer, agency, regulatory body, or
other authority of the United States, against an aggrieved person, any
information obtained or derived from a physical search pursuant to the
authority of this subchapter, the United States shall, prior to the
trial, hearing, or the other proceeding or at a reasonable time prior to
an effort to so disclose or so use that information or submit it in
evidence, notify the aggrieved person and the court or other authority
in which the information is to be disclosed or used that the United
States intends to so disclose or so use such information.
(e) Notification by States or political subdivisions
Whenever any State or political subdivision thereof intends to enter
into evidence or otherwise use or disclose in any trial, hearing, or
other proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of a State or a political
subdivision thereof against an aggrieved person any information obtained
or derived from a physical search pursuant to the authority of this
subchapter, the State or political subdivision thereof shall notify the
aggrieved person, the court or other authority in which the information
is to be disclosed or used, and the Attorney General that the State or
political subdivision thereof intends to so disclose or so use such
information.
(f) Motion to suppress
(1) Any person against whom evidence obtained or derived from a
physical search to which he is an aggrieved person is to be, or has
been, introduced or otherwise used or disclosed in any trial, hearing,
or other proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of the United States, a State, or a
political subdivision thereof, may move to suppress the evidence
obtained or derived from such search on the grounds that--
(A) the information was unlawfully acquired; or
(B) the physical search was not made in conformity with an order
of authorization or approval.
(2) Such a motion shall be made before the trial, hearing, or other
proceeding unless there was no opportunity to make such a motion or the
person was not aware of the grounds of the motion.
(g) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to
subsection (d) or (e) of this section, or whenever a motion is made
pursuant to subsection (f) of this section, or whenever any motion or
request is made by an aggrieved person pursuant to any other statute or
rule of the United States or any State before any court or other
authority of the United States or any State to discover or obtain
applications or orders or other materials relating to a physical search
authorized by this subchapter or to discover, obtain, or suppress
evidence or information obtained or derived from a physical search
authorized by this subchapter, the United States district court or,
where the motion is made before another authority, the United States
district court in the same district as the authority shall,
notwithstanding any other provision of law, if the Attorney General
files an affidavit under oath that disclosure or any adversary hearing
would harm the national security of the United States, review in camera
and ex parte the application, order, and such other materials relating
to the physical search as may be necessary to determine whether the
physical search of the aggrieved person was lawfully authorized and
conducted. In making this determination, the court may disclose to the
aggrieved person, under appropriate security procedures and protective
orders, portions of the application, order, or other materials relating
to the physical search, or may require the Attorney General to provide
to the aggrieved person a summary of such materials, only where such
disclosure is necessary to make an accurate determination of the
legality of the physical search.
(h) Suppression of evidence; denial of motion
If the United States district court pursuant to subsection (g) of
this section determines that the physical search was not lawfully
authorized or conducted, it shall, in accordance with the requirements
of law, suppress the evidence which was unlawfully obtained or derived
from the physical search of the aggrieved person or otherwise grant the
motion of the aggrieved person. If the court determines that the
physical search was lawfully authorized or conducted, it shall deny the
motion of the aggrieved person except to the extent that due process
requires discovery or disclosure.
(i) Finality of orders
Orders granting motions or requests under subsection (h) of this
section, decisions under this section that a physical search was not
lawfully authorized or conducted, and orders of the United States
district court requiring review or granting disclosure of applications,
orders, or other materials relating to the physical search shall be
final orders and binding upon all courts of the United States and the
several States except a United States Court of Appeals or the Supreme
Court.
(j) Notification of emergency execution of physical search; contents;
postponement, suspension, or elimination
(1) If an emergency execution of a physical search is authorized
under section 1824(d) of this title and a subsequent order approving the
search is not obtained, the judge shall cause to be served on any United
States person named in the application and on such other United States
persons subject to the search as the judge may determine in his
discretion it is in the interests of justice to serve, notice of--
(A) the fact of the application;
(B) the period of the search; and
(C) the fact that during the period information was or was not
obtained.
(2) On an ex parte showing of good cause to the judge, the serving
of the notice required by this subsection may be postponed or suspended
for a period not to exceed 90 days. Thereafter, on a further ex parte
showing of good cause, the court shall forego ordering the serving of
the notice required under this subsection.
(Pub. L. 95-511, title III, Sec. 305, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3449.)
Section Referred to in Other Sections
This section is referred to in sections 1822, 1826 of this title.
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[CITE: 50USC1826]
Sec. 1826. Congressional oversight
On a semiannual basis the Attorney General shall fully inform the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the Senate
concerning all physical searches conducted pursuant to this subchapter.
On a semiannual basis the Attorney General shall also provide to those
committees and the Committees on the Judiciary of the House of
Representatives and the Senate a report setting forth with respect to
the preceding six-month period--
(1) the total number of applications made for orders approving
physical searches under this subchapter;
(2) the total number of such orders either granted, modified, or
denied; and
(3) the number of physical searches which involved searches of
the residences, offices, or personal property of United States
persons, and the number of occasions, if any, where the Attorney
General provided notice pursuant to section 1825(b) of this title.
(Pub. L. 95-511, title III, Sec. 306, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3451.)
Section Referred to in Other Sections
This section is referred to in section 1822 of this title.
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[CITE: 50USC1827]
Sec. 1827. Penalties
(a) Prohibited activities
A person is guilty of an offense if he intentionally--
(1) under color of law for the purpose of obtaining foreign
intelligence information, executes a physical search within the
United States except as authorized by statute; or
(2) discloses or uses information obtained under color of law by
physical search within the United States, knowing or having reason
to know that the information was obtained through physical search
not authorized by statute, for the purpose of obtaining intelligence
information.
(b) Defense
It is a defense to a prosecution under subsection (a) of this
section that the defendant was a law enforcement or investigative
officer engaged in the course of his official duties and the physical
search was authorized by and conducted pursuant to a search warrant or
court order of a court of competent jurisdiction.
(c) Fine or imprisonment
An offense described in this section is punishable by a fine of not
more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if
the person committing the offense was an officer or employee of the
United States at the time the offense was committed.
(Pub. L. 95-511, title III, Sec. 307, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3452.)
Section Referred to in Other Sections
This section is referred to in section 1828 of this title.
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[CITE: 50USC1828]
Sec. 1828. Civil liability
An aggrieved person, other than a foreign power or an agent of a
foreign power, as defined in section 1801(a) or (b)(1)(A), respectively,
of this title, whose premises, property, information, or material has
been subjected to a physical search within the United States or about
whom information obtained by such a physical search has been disclosed
or used in violation of section 1827 of this title shall have a cause of
action against any person who committed such violation and shall be
entitled to recover--
(1) actual damages, but not less than liquidated damages of
$1,000 or $100 per day for each day of violation, whichever is
greater;
(2) punitive damages; and
(3) reasonable attorney's fees and other investigative and
litigation costs reasonably incurred.
(Pub. L. 95-511, title III, Sec. 308, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3452.)
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[CITE: 50USC1829]
Sec. 1829. Authorization during time of war
Notwithstanding any other provision of law, the President, through
the Attorney General, may authorize physical searches without a court
order under this subchapter to acquire foreign intelligence information
for a period not to exceed 15 calendar days following a declaration of
war by the Congress.
(Pub. L. 95-511, title III, Sec. 309, as added Pub. L. 103-359, title
VIII, Sec. 807(a)(3), Oct. 14, 1994, 108 Stat. 3452.)
[End 50 USC Chapter 36]