S. 1452 — Introduced in Senate

II 113th CONGRESS 1st Session S. 1452 IN THE SENATE OF THE UNITED STATES August 1, 2013 Mr. Franken (for himself, Mr. Leahy, Mr. Udall of New Mexico, Mr. Blumenthal, Mr. Merkley, Mr. Udall of Colorado, Mr. Wyden, Mr. Tester, Mr. Markey, Mr. Durbin, and Ms. Warren) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To enhance transparency for certain surveillance programs authorized by the Foreign Intelligence Surveillance Act of 1978 and for other purposes. 1. Short title This Act may be cited as the Surveillance Transparency Act of 2013. 2. Enhanced public reporting for orders under the Foreign Intelligence Surveillance Act of 1978 (a) Enhanced reporting for electronic surveillance orders Section 107 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1807) is amended— (1) by redesignating subsections (a) and (b) as paragraphs (1) and (2), respectively; (2) in paragraph (1), as redesignated by paragraph (1) of this subsection, by striking and at the end; (3) in paragraph (2), as redesignated by paragraph (1) of this subsection, by striking the period at the end and inserting a semicolon; and (4) by adding at the end the following: (3) the total number of individuals who were subject to electronic surveillance conducted under an order entered under this title, provided that if this number is fewer than 500, it shall exclusively be expressed as a numerical range of fewer than 500 and shall not be expressed as an individual number; and (4) the total number of citizens of the United States and aliens lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)) who were subject to electronic surveillance conducted under an order entered under this title, provided that if this number is fewer than 500, it shall exclusively be expressed as a numerical range of fewer than 500 and shall not be expressed as an individual number. . (b) Enhanced reporting for pen registers and trap and trace devices Section 406 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1846) is amended by adding at the end the following: (c) (1) Except as provided in paragraph (2), in April of each year, the Attorney General shall submit to Congress a report setting forth with respect to the preceding year— (A) the total number of applications made for orders approving the use of a pen register and trap and trace devices under this title; (B) the total number of such orders either granted, modified, or denied; (C) a good faith estimate of the total number of individual persons whose electronic or wire communications information was obtained through the use of pen register or trap and trace devices authorized under an order entered under this title; (D) good faith estimates of the total numbers of United States persons— (i) whose electronic or wire communications information was obtained through the use of pen register or trap and trace devices authorized under an order entered under this title; (ii) whose electronic communications information was obtained through the use of pen register or trap and trace devices authorized under an order entered under this title, and the number of such persons whose information was subsequently reviewed or accessed by a Federal officer, employee, or agent; and (iii) whose wire communications information was obtained through the use of pen register or trap and trace devices authorized under an order entered under this title, and the number of such persons whose information was subsequently reviewed or accessed by a Federal officer, employee, or agent; and (E) the total number of computer-assisted search queries initiated by a Federal officer, employee, or agent in any database of electronic or wire communications information obtained through the use of a pen register or trap and trace device authorized under an order entered under this title, and the number of such queries whose search terms included information from the electronic or wire communications information of a United States person. (2) If an estimate specified in subparagraphs (C) or (D) of paragraph (1) is fewer than 500, it shall exclusively be expressed as a numerical range of fewer than 500 and shall not be expressed as an individual number. (3) Each report under this section shall be submitted in unclassified form and shall be made available to the public 7 days after the date such report is submitted to Congress. (4) Nothing in this subsection shall be construed to authorize or in any other way affect the lawfulness or unlawfulness of installing or using a pen register or trap and trace device. (5) In this subsection: (A) The terms electronic communication and wire communication have the meanings given those terms in section 2510 of title 18, United States Code. (B) The term individual person means any individual and excludes any group, entity, association, corporation, or governmental entity. (C) The term United States person means a citizen of the United States or an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)). . (c) Enhanced reporting for business records requests Section 502 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1862) is amended— (1) in subsection (b)(3), by adding at the end the following: (F) Records concerning electronic communications. (G) Records concerning wire communications. (H) Information described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code. ; and (2) by amending subsection (c) to read as follows: (c) (1) Except as provided in paragraph (2), in April of each year, the Attorney General shall submit to Congress a report setting forth with respect to the preceding year— (A) the total number of applications made for orders approving requests for the production of tangible things under section 501; (B) the total number of such orders either granted, modified, or denied; (C) a good faith estimate of the total number of individual persons whose tangible things were produced under an order entered under section 501; (D) good faith estimates of the total numbers of United States persons— (i) whose tangible things were produced under an order entered under section 501; (ii) who were a party to an electronic communication of which a record was produced under an order entered under section 501, and the number of such persons whose records were subsequently reviewed or accessed by a Federal officer, employee, or agent; (iii) who were a party to a wire communication of which a record was produced under an order entered under section 501, and the number of such persons whose records were subsequently reviewed or accessed by a Federal officer, employee, or agent; and (iv) who were subscribers or customers of an electronic communication service or remote computing service and whose records, as described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code, were produced under an order entered under section 501, and the number of such persons whose records were subsequently reviewed by a Federal officer, employee, or agent; (E) the total number of computer-assisted search queries initiated by a Federal officer, employee or agent in any database of tangible things produced under an order entered under section 501, and the number of such queries whose search terms included information from the electronic or wire communications contents or records of a United States person; and (F) a certification confirming that in the course of the preceding year no orders entered under section 501 were used to obtain the contents of an electronic or wire communication. (2) If an estimate described in subparagraph (C) or (D) of paragraph (1) is fewer than 500, it shall exclusively be expressed as a numerical range of fewer than 500 and shall not be expressed as an individual number. (3) Each report under this subsection shall be submitted in unclassified form and shall be made available to the public 7 days after the date such report is submitted to Congress. (4) Nothing in this subsection shall be construed to authorize or in any other way affect the lawfulness or unlawfulness of using an order for the production of tangible things under section 501 to obtain any of the items described in subparagraphs (A) through (H) of subsection (b)(3). (5) In this subsection: (A) The terms contents, electronic communication, electronic communication service, and wire communication shall have the meanings given those terms in section 2510 of title 18, United States Code. (B) The term individual person means any individual and excludes any group, entity, association, corporation, or governmental entity. (C) The term remote computing service has the meaning given that term in section 2711 of title 18, United States Code. (D) The term United States person means a citizen of the United States or an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)). . (d) Enhanced reporting for additional procedures regarding certain persons outside the United States Section 707 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881f) is amended by adding at the end the following: (c) Annual report (1) Requirement for report In April of each year, the Attorney General shall submit to Congress a report setting forth with respect to the preceding year— (A) the total number of— (i) directives issued under section 702; (ii) orders granted under section 703; and (iii) orders granted under section 704; (B) good faith estimates of the total numbers of individual persons whose electronic or wire communications or communications records were collected pursuant to— (i) a directive issued under section 702; (ii) an order granted under section 703; and (iii) an order granted under section 704; and (C) good faith estimates of the total numbers of United States persons— (i) whose electronic or wire communications contents or records were collected pursuant to— (I) a directive issued under section 702; (II) an order granted under section 703; and (III) an order granted under section 704; (ii) who were a party to an electronic communication whose contents were collected pursuant to a directive issued under section 702, and the number of such persons whose communication contents were subsequently reviewed or accessed by a Federal officer, employee, or agent; (iii) who were a party to an electronic communication whose records (other than content) were collected pursuant to a directive issued under section 702, and the number of such persons whose communication records were subsequently reviewed or accessed by a Federal officer, employee, or agent; (iv) who were a party to a wire communication whose contents were collected pursuant to a directive issued under section 702, and the number of such persons whose communication contents were subsequently reviewed or accessed by a Federal officer, employee, or agent; (v) who were a party to an electronic communication whose records (other than content) were collected pursuant to a directive issued under section 702, and the number of such persons whose communication records were subsequently reviewed or accessed by a Federal officer, employee, or agent; and (vi) who were subscribers or customers of an electronic communication service or remote computing service whose records, as described in subparagraphs (A), (B), (D), (E), and (F) of section 2703(c)(2) of title 18, United States Code, were produced pursuant to a directive issued under section 702, and the number of such persons whose records were subsequently reviewed or accessed by a Federal officer, employee, or agent. (2) Statement of numerical range If an estimate specified in subparagraphs (B) or (C) of paragraph (1) is fewer than 500, it shall exclusively be expressed as a numerical range of fewer than 500 and shall not be expressed as an individual number. (3) Public availability Each report under this subsection shall be submitted in unclassified form and shall be made available to the public 7 days after the date such report is submitted to Congress. (4) Definitions In this subsection: (A) In general The terms contents, electronic communication, electronic communication service, and wire communication have the same meanings given those terms in section 2510 of title 18, United States Code. (B) Individual person The term individual person means any individual and excludes any group, entity, association, corporation, or governmental entity. (C) Remote computing service The term remote computing service shall have the same meaning given that term in section 2711 of title 18, United States Code. (D) United States person The term United States person means a citizen of the United States or an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)). (5) Construction Nothing in this section shall be construed to authorize or in any other way affect the lawfulness or unlawfulness of using an order or directive under section 702, 703, or 704 to collect any of the information described in subparagraph (B) or (C) of paragraph (1). . 3. Public disclosures of aggregate information related to orders under the Foreign Intelligence Surveillance Act of 1978 (a) Disclosures The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following: IX Public disclosures of aggregate information 901. Public disclosures of aggregate information (a) In general Except as provided under subsection (c), a person that has received an order under section 105, 402, or 501, or an order or a directive under section 702, 703, or 704 may, every six months with respect to the preceding six-month period, disclose to the public information with respect to each statutory authority as follows: (1) The total number of orders or directives received under the authority. (2) The percentage or total number of such orders or directives complied with, in whole or in part. (3) The total number of individual persons, users, or accounts whose information of any kind was produced to the Government, or was obtained or collected by the Government, under an order or directive received under the authority. (b) Nature of production Except as provided under subsection (c), a person that has received an order under section 402 or 501, or an order or a directive under section 702 may, every six months with respect to the preceding six-month period, disclose to the public the total number of individual persons, users, or accounts for whom the following information was produced to the Government, or was obtained or collected by the Government, with respect to each such authority, if applicable: (1) The contents of electronic communications. (2) The contents of wire communications. (3) Records concerning electronic communications. (4) Records concerning wire communications. (5) Information described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18. (c) Statement of numerical range If the total number of individual persons, users, or accounts specified in paragraph (3) of subsection (a) or in paragraphs (1), (2), (3), (4), or (5) of subsection (b) is fewer than 500, it shall exclusively be expressed as a numerical range of fewer than 500 and shall not be expressed as an individual number. (d) Permitted disclosure No cause of action shall lie in any court against any person for making a disclosure in accordance with this section. (e) Construction Nothing in this section shall be construed— (1) to authorize or in any other way affect the lawfulness or unlawfulness of using an order or directive described in subsection (a) to obtain, collect, or secure the production of information described in paragraphs (1), (2), (3), (4), or (5) of subsection (b); or (2) to prohibit, implicitly preclude, or in any other way affect the lawfulness or unlawfulness of a disclosure not authorized by this section. (f) Definitions In this section: (1) In general The terms contents, electronic communication, and wire communication have the meanings given those terms in section 2510 of title 18, United States Code. (2) Individual person The term individual person means any individual and excludes any group, entity, association, corporation, or governmental entity. (3) Person The term person has the meaning given that term in section 101. . (b) Conforming amendments The Foreign Intelligence Surveillance Act of 1978 is amended— (1) in section 402(d)(2)(B)(ii)(I) (50 U.S.C. 1842(d)(2)(B)(ii)(I)), by inserting except as permitted by section 901, before shall not disclose; and (2) in section 501(d) (50 U.S.C. 1861(d))— (A) in paragraph (1)— (i) in subparagraph (B), by striking or at the end; (ii) in subparagraph (C), by striking the period at the end and inserting a semicolon and or; and (iii) by adding at the end the following: (D) the public as permitted by section 901. ; and (B) in paragraph (2)(A) by inserting subparagraph (A), (B), or (C) of after pursuant to. (c) Table of contents amendment The table of contents in the first section of th Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following: TITLE IX—Public disclosures of aggregate information Sec. 901. Public disclosures of aggregate information. .