Advanced Criminal Investigations and Intelligence Operations

by Unknown

  (D) by inserting before section 384 the following heading:

  “Authority of Commission; Operations, Installations, and

  Additional Equipment”;

  (E) by inserting before section 385 the following heading:

  “Inspections”; and

  (F) by inserting before section 386 the following heading:

  “Forfeitures”;

  (21) in section 410(c), by striking “, as referred to in sections 202(b) and 205(f) of the Interstate Commerce Act,”;

  (22) in section 613(b)(2), by inserting a comma after “pole” and after

  “line”;

  (23) in section 624(d)(2)(A), by inserting “of” after “viewing”;

  324

  Appendix A: Electronic Surveillance Law

  (24) in section 634(h)(1), by striking “section 602(6)(A)” and insert-

  ing “section 602(7)(A)”;

  (25) in section 705(d)(6), by striking “subsection (d)” and inserting

  “subsection (e)”;

  (26) in section 705(e)(3)(A), by striking “paragraph (4) of subsection

  (d)” and inserting “paragraph (4) of this subsection”;

  (27) in section 705, by redesignating subsections (f) and (g) (as added by Public Law 100-667) as subsections (g) and (h); and

  (28) in section 705(h) (as so redesignated), by striking “subsection

  (f)” and inserting “subsection (g).”

  (b) Amendments to the Communications Satellite Act of 1962—The

  Communications Satellite Act of 1962 is amended—

  (1) in section 303(a)—

  (A) by striking “section 27(d)” and inserting “section 327(d)”;

  (B) by striking “sec. 29-911(d)” and inserting “sec. 29-327(d)”;

  (C) by striking “section 36” and inserting “section 336”; and

  (D) by striking “sec. 29-916d” and inserting “section 29-336(d)”;

  (2) in section 304(d), by striking “paragraphs (1), (2), (3), (4), and (5) of section 310(a)” and inserting “subsection (a) and paragraphs

  (1) through (4) of subsection (b) of section 310”; and

  (3) in section 304(e)—

  (A) by striking “section 45(b)” and inserting “section 345(b)”; and

  (B) by striking “sec. 29-920(b)” and inserting “sec. 29-345(b)”; and

  (4) in sections 502(b) and 503(a)(1), by striking “the Communications

  Satellite Corporation” and inserting “the communications sat-

  ellite corporation established pursuant to title III of this Act.”

  (c) Amendment to the Children’s Television Act of 1990—Section 103(a) of the Children’s Television Act of 1990 (47 U.S.C.

  303b(a)) is amended by striking “noncommerical” and inserting

  “noncommercial”.

  (d) Amendments to the Telecommunications Authorization Act of

  1992—Section 205(1) of the Telecommunications Authorization Act

  of 1992 is amended—

  (1) by inserting an open parenthesis before “other than”; and

  (2) by inserting a comma after “stations)”.

  (e) Conforming Amendment—Section 1253 of the Omnibus Budget

  Reconciliation Act of 1981 is repealed.

  (f) Stylistic Consistency—The Communications Act of 1934 and the

  Communications Satellite Act of 1962 are amended so that the

  section designation and section heading of each section of such

  Appendix A: Electronic Surveillance Law

  325

  Acts shall be in the form and typeface of the section designation and

  heading of this section.

  § 304. Elimination of Expired and Outdated Provisions

  (a)

  Amendments to the Communications Act of 1934—The

  Communications Act of 1934 is amended—

  (1) in section 7(b), by striking “or twelve months after the

  date of the enactment of this section, if later” both places it

  appears;

  (2) in section 212, by striking “After sixty days from the enactment

  of this Act it shall” and inserting “It shall”;

  (3) in section 213, by striking subsection (g) and redesignating

  subsection (h) as subsection (g);

  (4) in section 214, by striking “section 221 or 222” and inserting

  “section 221”;

  (5) in section 220(b), by striking “, as soon as practicable,”;

  (6) by striking section 222;

  (7) in section 224(b)(2), by striking “Within 180 days from the date

  of enactment of this section the Commission” and inserting

  “The Commission”;

  (8) in 226(e), by striking “within 9 months after the date of enact-

  ment of this section,”;

  (9) in section 309(i)(4)(A), by striking “The commission, not

  later than 180 days after the date of the enactment of the

  Communications Technical Amendments Act of 1982, shall,”

  and inserting “The Commission shall,”;

  (10) by striking section 328;

  (11) in section 413, by striking “, within 60 days after the taking

  effect of this Act,”;

  (12) in section 624(d)(2)(B)—

  (A) by striking out “(A)”;

  (B) by inserting “of” after “restrict the viewing”; and

  (C) by striking subparagraph (B);

  (13) by striking sections 702 and 703;

  (14) in section 704—

  (A) by striking subsections (b) and (d); and

  (B) by redesignating subsection (c) as subsection (b);

  (15) in section 705(g) (as redesignated by section 304(25)), by strik-

  ing “within 6 months after the date of enactment of the Satellite

  326

  Appendix A: Electronic Surveillance Law

  Home Viewer Act of 1988, the Federal Communications

  Commission” and inserting “The Commission”;

  (16) in section 710(f)—

  (A) by striking the first and second sentences; and

  (B)

  in the third sentence, by striking “Thereafter, the

  Commission” and inserting “The Commission”;

  (17) in section 712(a), by striking “, within 120 days after the effective date of the Satellite Home Viewer Act of 1988,”; and

  (18) by striking section 713.

  (b) Amendments to the Communications Satellite Act of 1962—The

  Communications Satellite Act of 1962 is amended—

  (1) in section 201(a)(1), by striking “as expeditiously as possible,”;

  (2) by striking sections 301 and 302 and inserting the following:

  “§ 301. Creation of Corporation

  “There is authorized to be created a communications satellite corporation for profit which will not be an agency or establishment of the United States Government.

  “§ 302. Applicable Laws

  “The corporation shall be subject to the provisions of this Act and, to

  the extent consistent with this Act, to the District of Columbia Business Corporation Act. The right to repeal, alter, or amend this Act at any time is expressly reserved.”;

  (3) in section 304(a), by striking “at a price not in excess of $100 for each share and”;

  (4) in section 404—

  (A) by striking subsections (a)–(c); and

  (B) by redesignating subsection (b) as section 404;

  (5) in section 503—

  (A) by striking paragraph (2) of subsection (a); and

  (B) by redesignating paragraph (3) of subsection (a) as para-

  graph (2) of such subsection;

  (C) by striking subsection (b);

  (D) in subsection (g)—

  (i) by striking “subsection (c)(3)” and inserting “subsec-

  tion (b)(3)”; and

 
(ii) by striking the last sentence; and

  (E) by redesignating subsections (c)–(h) as subsections (b)–

  (g), respectively;

  Appendix A: Electronic Surveillance Law

  327

  (5) by striking sections 505–507; and

  (6) by redesignating section 508 as section 505.

  Approved October 25, 1994

  Foreign Intelligence Surveillance Act (50 U.S.C. 1861)

  § 1861. Access to Certain Business Records for Foreign

  Intelligence and International Terrorism Investigations

  (a) Application for Order; Conduct of Investigation General y

  (1) Subject to paragraph (3), the Director of the Federal Bureau of

  Investigation or a designee of the Director (whose rank shall be

  no lower than Assistant Special Agent in Charge) may make an

  application for an order requiring the production of any tangible

  things (including books, records, papers, documents, and other

  items) for an investigation to obtain foreign intelligence informa-

  tion not concerning a United States person or to protect against

  international terrorism or clandestine intelligence activities, pro-

  vided that such investigation of a United States person is not con-

  ducted solely upon the basis of activities protected by the first

  amendment to the Constitution.

  (2) An investigation conducted under this section shall—

  (A) be conducted under guidelines approved by the Attorney

  General under Executive Order 12333 (or a successor order);

  and

  (B) not be conducted of a United States person solely upon the

  basis of activities protected by the first amendment to the

  Constitution of the United States.

  (3) In the case of an application for an order requiring the produc-

  tion of library circulation records, library patron lists, book sales

  records, book customer lists, firearms sales records, tax return

  records, educational records, or medical records containing infor-

  mation that would identify a person, the Director of the Federal

  Bureau of Investigation may delegate the authority to make such

  application to either the Deputy Director of the Federal Bureau

  of Investigation or the Executive Assistant Director for National

  Security (or any successor position). The Deputy Director or

  the Executive Assistant Director may not further delegate such

  authority.

  328

  Appendix A: Electronic Surveillance Law

  (b) Recipient and Contents of Application

  Each application under this section—

  (1) shall be made to—

  (A) a judge of the court established by section 1803 (a) of this

  title; or

  (B) a United States Magistrate Judge under chapter 43 of title

  28, who is publicly designated by the Chief Justice of the

  United States to have the power to hear applications and

  grant orders for the production of tangible things under this

  section on behalf of a judge of that court; and

  (2) shall include—

  (A) a statement of facts showing that there are reasonable

  grounds to believe that the tangible things sought are rel-

  evant to an authorized investigation (other than a threat

  assessment) conducted in accordance with subsection (a)(2)

  to obtain foreign intelligence information not concerning

  a United States person or to protect against international

  terrorism or clandestine intelligence activities, such things

  being presumptively relevant to an authorized investigation

  if the applicant shows in the statement of the facts that they

  pertain to—

  (i) a foreign power or an agent of a foreign power;

  (ii) the activities of a suspected agent of a foreign power

  who is the subject of such authorized investigation; or

  (iii) an individual in contact with, or known to, a suspected

  agent of a foreign power who is the subject of such

  authorized investigation; and

  (B) an enumeration of the minimization procedures adopted by

  the Attorney General under subsection (g) that are applica-

  ble to the retention and dissemination by the Federal Bureau

  of Investigation of any tangible things to be made available

  to the Federal Bureau of Investigation based on the order

  requested in such application.

  (c) Ex Parte Judicial Order of Approval

  (1) Upon an application made pursuant to this section, if the judge

  finds that the application meets the requirements of subsections

  (a) and (b), the judge shall enter an ex parte order as requested, or

  as modified, approving the release of tangible things. Such order

  shall direct that minimization procedures adopted pursuant to

  subsection (g) be followed.

  Appendix A: Electronic Surveillance Law

  329

  (2) An order under this subsection—

  (A) shall describe the tangible things that are ordered to be

  produced with sufficient particularity to permit them to be

  fairly identified;

  (B) shall include the date on which the tangible things must

  be provided, which shall allow a reasonable period of time

  within which the tangible things can be assembled and

  made available;

  (C) shall provide clear and conspicuous notice of the principles

  and procedures described in subsection (d);

  (D) may only require the production of a tangible thing if such

  thing can be obtained with a subpoena duces tecum issued

  by a court of the United States in aid of a grand jury inves-

  tigation or with any other order issued by a court of the

  United States directing the production of records or tan-

  gible things; and

  (E) shall not disclose that such order is issued for purposes of an

  investigation described in subsection (a).

  (d) Nondisclosure

  (1) No person shall disclose to any other person that the Federal

  Bureau of Investigation has sought or obtained tangible things

  pursuant to an order under this section, other than to—

  (A) those persons to whom disclosure is necessary to comply

  with such order;

  (B) an attorney to obtain legal advice or assistance with

  respect to the production of things in response to the

  order; or

  (C) other persons as permitted by the Director of the Federal

  Bureau of Investigation or the designee of the Director.

  (2)

  (A) A person to whom disclosure is made pursuant to paragraph

  (1) shall be subject to the nondisclosure requirements appli-

  cable to a person to whom an order is directed under this

  section in the same manner as such person.

  (B) Any person who discloses to a person described in sub-

  paragraph (A), (B), or (C) of paragraph (1) that the Federal

  Bureau of Investigation has sought or obtained tangible

  things pursuant to an order under this section shall notify

  such person of the nondisclosure requirements of this

  subsection.

  330

  Appendix A: Electronic Surveillance Law

  (C) At the request of the Director of the Federal Bureau of

  Investigation or the designee of the Director, any person

  making or intending to make a disclosure under
subpara-

  graph (A) or (C) of paragraph (1) shall identify to the Director

  or such designee the person to whom such disclosure will

  be made or to whom such disclosure was made prior to the

  request.

  (e) Liability for Good Faith Disclosure; Waiver

  A person who, in good faith, produces tangible things under an order

  pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver

  of any privilege in any other proceeding or context.

  (f) Judicial Review of FISA Orders

  (1) In this subsection—

  (A) the term “production order” means an order to produce any

  tangible thing under this section; and

  (B) the term “nondisclosure order” means an order imposed

  under subsection (d).

  (2)

  (A)

  (i) A person receiving a production order may challenge

  the legality of that order by filing a petition with the

  pool established by section 1803 (e)(1) of this title.

  Not less than 1 year after the date of the issuance of

  the production order, the recipient of a production

  order may challenge the nondisclosure order imposed

  in connection with such production order by filing

  a petition to modify or set aside such nondisclosure

  order, consistent with the requirements of subpara-