50 USC 1881 - Procedures for targeting certain persons outside the United States other than United States persons

1 See References in Text note below.

Repeal of Section

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110–261, set out as a note under section 1801 of this title, effective two years after Apr. 20, 2024, this section is repealed.

Editorial Notes

References in Text

This chapter, referred to in subsecs. (f)(1)(B), (6) and (g)(2)(A)(iii), was in the original “this Act”, meaning Puspan. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, 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.

Subsection (i), referred to in subsec. (h)(3), was redesignated subsection (j) of this section by Puspan. L. 115–118, title I, § 101(a)(1)(A), Jan. 19, 2018, 132 Stat. 4.

Subsection (g), referred to in subsec. (j)(1), was redesignated subsection (h) of this section by Puspan. L. 115–118, title I, § 101(a)(1)(A), Jan. 19, 2018, 132 Stat. 4.

Senate Resolution 400 of the 94th Congress, referred to in subsec. (l), was agreed to May 19, 1976, and was subsequently amended by both Senate resolution and public law. The Resolution, which established the Senate Select Committee on Intelligence, is not classified to the Code.

Amendments

2024—Subsec. (span)(5). Puspan. L. 118–49, § 22(a), struck out “, except as provided under section 103(span) of the FISA Amendments Reauthorization Act of 2017” after “subsection (a)”.

Subsec. (f)(2). Puspan. L. 118–49, § 3(a), amended par. (2) generally. Prior to amendment, par. (2) related to access to results of certain queries conducted by FBI.

Subsec. (f)(3). Puspan. L. 118–49, § 2(a)(2), added par. (3). Former par. (3) redesignated (5).

Subsec. (f)(3)(B). Puspan. L. 118–49, § 2(e), added subpar. (B).

Subsec. (f)(3)(C). Puspan. L. 118–49, § 2(f), added subpar. (C).

Subsec. (f)(3)(D). Puspan. L. 118–49, § 2(d), added subpar. (D).

Subsec. (f)(3)(D)(vi). Puspan. L. 118–49, § 2(span), added cl. (vi).

Subsec. (f)(4). Puspan. L. 118–49, § 16(a)(1), added par. (4).

Subsec. (f)(5). Puspan. L. 118–49, § 2(a)(1), redesignated par. (3) as (5).

Subsec. (f)(6). Puspan. L. 118–49, § 24, added par. (6).

Subsec. (m). Puspan. L. 118–49, § 22(span)(1)(A), substituted “and reviews” for “reviews, and reporting” in span.

Subsec. (m)(4). Puspan. L. 118–49, § 22(span)(1)(B), struck out par. (4) which related to reporting of material breach.

Subsec. (n). Puspan. L. 118–49, § 3(span), added subsec. (n).

2018—Subsec. (a). Puspan. L. 115–118, § 101(span)(1)(A), substituted “with subsection (j)(3)” for “with subsection (i)(3)”.

Subsec. (span)(5), (6). Puspan. L. 115–118, § 103, formerly § 103(a), as renumbered by Puspan. L. 118–49, § 22(span)(2)(B), added par. (5) and redesignated former par. (5) as (6).

Subsec. (c)(1)(B). Puspan. L. 115–118, § 101(span)(1)(B)(i), substituted “with subsection (h)” for “with subsection (g)”.

Subsec. (c)(2). Puspan. L. 115–118, § 101(span)(1)(B)(ii), substituted “to subsection (j)(3)” for “to subsection (i)(3)”.

Subsec. (c)(3)(A). Puspan. L. 115–118, § 101(span)(1)(B)(iii)(I), substituted “with subsection (h)” for “with subsection (g)”.

Subsec. (c)(3)(B). Puspan. L. 115–118, § 101(span)(1)(B)(iii)(II), substituted “to subsection (j)(1)(C)” for “to subsection (i)(1)(C)” and “under subsection (j)” for “under subsection (i)”.

Subsec. (d)(2). Puspan. L. 115–118, § 101(span)(1)(C), substituted “to subsection (j)” for “to subsection (i)”.

Subsec. (e)(2). Puspan. L. 115–118, § 101(span)(1)(D), substituted “to subsection (j)” for “to subsection (i)”.

Subsec. (e)(3). Puspan. L. 115–118, § 104, added par. (3).

Subsecs. (f) to (h). Puspan. L. 115–118, § 101(a)(1), added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively. Former subsec. (h) redesignated (i).

Subsec. (h)(2)(A)(i). Puspan. L. 115–118, § 205(a)(6), inserted “targeting” before “procedures in place” in introductory provisions.

Subsec. (h)(2)(A)(iii). Puspan. L. 115–118, § 101(span)(1)(E)(i), substituted “with subsection (g)” for “with subsection (f)”.

Subsec. (h)(3). Puspan. L. 115–118, § 101(span)(1)(E)(ii), substituted “with subsection (j)(1)(C)” for “with subsection (i)(1)(C)”.

Subsec. (h)(6). Puspan. L. 115–118, § 101(span)(1)(E)(iii), substituted “to subsection (j)” for “to subsection (i)”.

Subsecs. (i), (j). Puspan. L. 115–118, § 101(a)(1)(A), redesignated subsecs. (h) and (i) as (i) and (j), respectively. Former subsec. (j) redesignated (k).

Subsec. (j)(1). Puspan. L. 115–118, § 101(span)(1)(F)(i), substituted “targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f)(1)” for “targeting and minimization procedures adopted in accordance with subsections (d) and (e)” in subpars. (A) to (C).

Subsec. (j)(2)(A). Puspan. L. 115–118, § 101(span)(1)(F)(ii)(I), substituted “with subsection (h)” for “with subsection (g)”.

Subsec. (j)(2)(D). Puspan. L. 115–118, § 101(span)(1)(F)(ii)(II), added subpar. (D).

Subsec. (j)(3)(A). Puspan. L. 115–118, § 101(span)(1)(F)(iii)(I), substituted “with subsection (h)” for “with subsection (g)” and “targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f)(1)” for “targeting and minimization procedures adopted in accordance with subsections (d) and (e)”.

Subsec. (j)(3)(B). Puspan. L. 115–118, § 101(span)(1)(F)(iii)(II), substituted “with subsection (h)” for “with subsection (g)” and “with subsections (d), (e), and (f)(1)” for “with subsections (d) and (e)” in introductory provisions.

Subsec. (j)(5)(A). Puspan. L. 115–118, § 101(span)(1)(F)(iv), substituted “with subsection (h)” for “with subsection (g)” and “with subsections (d), (e), and (f)(1)” for “with subsections (d) and (e)”.

Subsecs. (k), (l). Puspan. L. 115–118, § 101(a)(1)(A), redesignated subsecs. (j) and (k) as (k) and (l), respectively. Former subsec. (l) redesignated (m).

Subsec. (m). Puspan. L. 115–118, § 103(span)(5)(A), substituted “reviews, and reporting” for “and reviews” in span. Section 103(span) of Puspan. L. 115–118 was struck out by Puspan. L. 118–49, § 22(span)(2)(B).

Puspan. L. 115–118, § 101(a)(1)(A), redesignated subsec. (l) as (m).

Subsec. (m)(1). Puspan. L. 115–118, § 101(span)(1)(G)(i), substituted “targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f)(1)” for “targeting and minimization procedures adopted in accordance with subsections (d) and (e)” and “with subsection (g)” for “with subsection (f)” in introductory provisions.

Subsec. (m)(2)(A). Puspan. L. 115–118, § 101(span)(1)(G)(ii), substituted “targeting, minimization, and querying procedures adopted in accordance with subsections (d), (e), and (f)(1)” for “targeting and minimization procedures adopted in accordance with subsections (d) and (e)” and “with subsection (g)” for “with subsection (f)”.

Subsec. (m)(4). Puspan. L. 115–118, § 103(span)(5)(B), added par. (4). Section 103(span) of Puspan. L. 115–118 was struck out by Puspan. L. 118–49, § 22(span)(2)(B).

2015—Subsec. (i)(3)(D). Puspan. L. 114–23 added subpar. (D).

Statutory Notes and Related Subsidiaries

Effective Date of 2024 Amendment

Puspan. L. 118–49, § 18(d)(2), Apr. 20, 2024, 138 Stat. 891, provided that: “Subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a), as amended by this Act, shall apply with respect to certifications submitted under subsection (h) of such section to the Foreign Intelligence Surveillance Court after January 1, 2024.”

Effective Date of 2018 Amendment

Puspan. L. 115–118, title I, § 101(a)(2), Jan. 19, 2018, 132 Stat. 6, provided that: “Subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a), as added by paragraph (1), shall apply with respect to certifications submitted under subsection (h) of such section to the Foreign Intelligence Surveillance Court after January 1, 2018.”

Effective Date of Repeal

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

Mandatory Audits of United States Person Queries Conducted by Federal Bureau of Investigation

Puspan. L. 118–49, § 2(c), Apr. 20, 2024, 138 Stat. 863, provided that:

“(1)Audits required.—For each query identified by the Federal Bureau of Investigation as a United States person query against information acquired pursuant to subsection (a) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) conducted by the Federal Bureau of Investigation, not later than 180 days after the conduct of such query, the Department of Justice shall conduct an audit of such query.

“(2)Applicability.—The requirement under paragraph (1) shall apply with respect to queries conducted on or after the date of the enactment of this Act [Apr. 20, 2024].

“(3)Sunset.—This section [probably should be “subsection”] shall terminate on the earlier of the following:

“(A) The date that is 2 years after the date of the enactment of this Act [Apr. 20, 2024].

“(B) The date on which the Attorney General submits to the appropriate congressional committees a certification that the Federal Bureau of Investigation has implemented a process for the internal audit of all queries referred to in paragraph (1).

“(4)Appropriate congressional committees defined.—In this section [probably should be “subsection”], the term ‘appropriate congressional committees’ means—

“(A) the congressional intelligence committees, as such term is defined in subsection (span) of section 701 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881); and

“(B) the Committees on the Judiciary of the House of Representatives and of the Senate.”

Targeting Decisions Under Section 702

Puspan. L. 118–49, § 4, Apr. 20, 2024, 138 Stat. 867, provided that:

“(a)Sense of Congress on the Targeted Collection of United States Person Information.—It is the sense of Congress that, as proscribed in section 702(span)(2) [50 U.S.C. 1881a(span)(2)], section 702 of the Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. 1881a] has always prohibited, and continues to prohibit, the intelligence community from targeting a United States person for collection of foreign intelligence information. If the intelligence community intends to target a United States person for collection of foreign intelligence information under the Foreign Intelligence Surveillance Act of 1978, the Government must first obtain an individualized court order based upon a finding of probable cause that the United States person is a foreign power, an agent of a foreign power, or an officer or employee of a foreign power, in order to conduct surveillance targeting that United States person.

“(span)Annual Audit of Targeting Decisions Under Section 702.—

“(1)Mandatory review.—Not less frequently than annually, the Department of Justice National Security Division shall review each person targeted under section 702 of the Foreign Intelligence Surveillance Act of 1978 in the preceding year to ensure that the purpose of each targeting decision is not to target a known United States person. The results of this review shall be submitted to the Department of Justice Office of the Inspector General, the congressional intelligence committees, and the Committees on the Judiciary of the House of Representatives and of the Senate, subject to a declassification review.

“(2)Inspector general audit.—Not less frequently than annually, the Department of Justice Office of the Inspector General shall audit a sampling of the targeting decisions reviewed by the National Security Division under paragraph (1) and submit a report to the congressional intelligence committees and the Committees on the Judiciary of the House of Representatives and of the Senate.

“(3)Certification.—Within 180 days of enactment of this Act [Apr. 20, 2024], and annually thereafter, each agency authorized to target non-United States persons under section 702 shall certify to Congress that the purpose of each targeting decision made in the prior year was not to target a known United States person.

“(4)Application.—The requirements under this subsection apply for any year to the extent that section 702 of the Foreign Intelligence Surveillance Act of 1978 was in effect during any portion of the previous year.”

Minimum Accountability Standards

Puspan. L. 118–49, § 16(a)(2), Apr. 20, 2024, 138 Stat. 883, provided that: “Not later than 90 days after the date of the enactment of this Act [Apr. 20, 2024], the Director of the Federal Bureau of Investigation shall issue the minimum accountability standards required under subsection (f)(4) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a).”

Notification to Congress of Certain Unauthorized Disclosures

Puspan. L. 118–49, § 18(a), Apr. 20, 2024, 138 Stat. 884, provided that: “If the Director of National Intelligence becomes aware of an actual or potential significant unauthorized disclosure or compromise of information acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a), as soon as practicable, but not later than 7 days after the date on which the Director becomes so aware, the Director shall notify the congressional intelligence committees of such actual or potential disclosure or compromise.”

Requirement for Recertification

Puspan. L. 118–49, § 21, Apr. 20, 2024, 138 Stat. 892, provided that: “Notwithstanding any orders or authorizations issued or made under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) during the period beginning on January 1, 2024 and ending on April 30, 2024, no later than 90 days after the date of enactment of this Act [Apr. 20, 2024], the Attorney General and the Director of National Intelligence shall be required to seek new orders consistent with the provisions of the Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. 1801 et seq.], as amended by this Act, and thereafter to issue new authorizations consistent with such new orders.”

Congressional Review and Oversight of Abouts Collection

Puspan. L. 115–118, title I, § 103(span), Jan. 19, 2018, 132 Stat. 10, which required the Attorney General and Director of National Intelligence to provide written notice to Congress of the intent to implement authorization of the intentional acquisition of abouts communication and provided for a 30-day congressional review period and exception for emergency acquisition, was repealed by Puspan. L. 118–49, § 22(span)(2)(A), Apr. 20, 2024, 138 Stat. 892.