H.R. 2849 — Introduced in House

I 113th CONGRESS 1st Session H. R. 2849 IN THE HOUSE OF REPRESENTATIVES July 30, 2013 Mr. Lynch introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend the Foreign Intelligence Surveillance Act of 1978 to establish an Office of the Privacy Advocate General. 1. Short title This Act may be cited as the Privacy Advocate General Act of 2013. 2. Office of the Privacy Advocate General (a) Establishment The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following new title: IX Privacy Advocate General 901. Privacy Advocate General (a) Office of the Privacy Advocate General There is established an independent office in the Executive branch to be known as the Office of the Privacy Advocate General. (b) Privacy Advocate General (1) Appointment There is a Privacy Advocate General, who shall be the head of the Office of the Privacy Advocate General, who shall be appointed jointly by the Chief Justice of the United States and the most senior associate justice of the Supreme Court appointed by a President that at the time of appointment was a member of a political party other than the political party of the President that appointed the Chief Justice. (2) Term The Privacy Advocate General shall serve a term of 7 years and may be reappointed in accordance with paragraph (1). (c) Duties Notwithstanding any other provision of this Act, the Privacy Advocate General— (1) shall serve as the opposing counsel with respect to any application by the Federal Government for an order or directive under this Act and any review of a certification or targeting procedures under this Act, including in any proceedings before a court or review of an application, certification, or targeting procedures under this Act that would otherwise be conducted ex parte; (2) shall, in carrying out paragraph (1), oppose any Federal Government request for an order or directive under this Act and any certification or targeting procedures under this Act and argue the merits of the opposition before the court concerned, including any arguments relating to the constitutionality of a provision of law under which the Federal Government is seeking an order or directive; and (3) may request the court established under subsection (a) or (b) of section 103 to make publicly available an order, decision, or opinion of such court. (d) Appeals The Privacy Advocate General may— (1) appeal a decision of the court established under subsection (a) of section 103 to the court established under subsection (b) of such section; and (2) petition the Supreme Court for a writ of certiorari for review of a decision of the court established under section 103(b). (e) Staff The Privacy Advocate General shall appoint such staff of the Office of the Privacy Advocate General as the Privacy Advocate General considers necessary to carry out the duties of the Privacy Advocate General. (f) Security clearance The President shall ensure that the Privacy Advocate General and the staff of the Office of the Privacy Advocate General appointed under subsection (b) possess appropriate security clearances to carry out the duties of the Privacy Advocate General under this section. . (b) Table of contents amendment The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 note) is amended by adding at the end the following new items: Title IX—Privacy Advocate General Sec. 901. Privacy Advocate General. . (c) Conforming amendment Section 103(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b)) is amended— (1) by striking review the denial and inserting review the approval or denial; (2) by striking properly denied and inserting properly approved or denied, as the case may be; and (3) by striking petition of the United States and inserting petition. 3. Authority during appeals process (a) Electronic surveillance Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is amended by adding at the end the following new subsection: (i) (1) In any case where a judge denies an application under this section and the Government expresses an intent to appeal that denial, the judge may temporarily authorize the emergency employment of electronic surveillance pending such appeal if the judge finds— (A) there is a reasonable argument that the electronic surveillance is permissible; and (B) there are exceptional circumstances and compelling evidence showing that immediate electronic surveillance is necessary to accomplish the purpose of the electronic surveillance. (2) In any case where a judge authorizes the emergency employment of electronic surveillance pending appeal under paragraph (1) and the application by the Government is denied on appeal, any information gathered or derived from such electronic surveillance shall be destroyed and no such information may 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. . (b) Physical search Section 304 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824) is amended by adding at the end the following new subsection: (f) (1) In any case where a judge denies an application under this section and the Government expresses an intent to appeal that denial, the judge may temporarily authorize the emergency employment of physical search pending such appeal if the judge finds— (A) there is a reasonable argument that the physical search is permissible; and (B) there are exceptional circumstances and compelling evidence showing that an immediate physical search is necessary to accomplish the purpose of the physical search. (2) In any case where a judge authorizes the emergency employment of a physical search pending appeal under paragraph (1) and the application by the Government is denied on appeal, any information gathered or derived from such physical search shall be destroyed and no such information may 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 physical search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person. . (c) Pen register and trap and trace Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended by adding at the end the following new subsection: (d) (1) In any case where a judge denies an application under this section and the Government expresses an intent to appeal that denial, the judge may temporarily authorize installation and use of a pen register or trap and trace device on an emergency basis pending such appeal if the judge finds— (A) there is a reasonable argument that the installation and use of a pen register or trap and trace device is permissible; and (B) there are exceptional circumstances and compelling evidence showing that immediate installation and use of a pen register or trap and trace device is necessary to accomplish the purpose of the installation and use of such pen register or trap and trace device. (2) In any case where a judge authorizes the installation and use of a pen register or trap and trace device on an emergency basis pending appeal under paragraph (1) and the application by the Government is denied on appeal, any information gathered or derived from such installation and use of a pen register or trap and trace device shall be destroyed and no such information may 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 installation and use of a pen register or trap and trace device shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person. .