50 U.S.C. § 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)

section 1801(h) of this title the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under ; 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)

section 1808(a) of this title 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 .

(3)

section 1803(a) of this title The Attorney General shall immediately transmit under seal to the court established under 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 National 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)

section 1806(f) of this title the certification is necessary to determine the legality of the surveillance under .

(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 National 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)

section 1803 of this title section 1805 of this title 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 , and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with , 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) unless such surveillance may involve the acquisition of communications of any United States person.

Pub. L. 95–511, title I, § 102Oct. 25, 197892 Stat. 1786 Pub. L. 108–458, title I, § 1071(e)Dec. 17, 2004118 Stat. 3691 Pub. L. 111–259, title VIII, § 806(a)(2)Oct. 7, 2010124 Stat. 2748(, , ; , , ; , , .)

Editorial Notes

Amendments

Pub. L. 111–259 Pub. L. 108–4582010—Subsec. (a)(3), (4)(B). made technical amendment to directory language of . See 2004 Amendment note below.

Pub. L. 108–458 Pub. L. 111–2592004—Subsec. (a)(3), (4)(B). , as amended by , substituted “Director of National Intelligence” for “Director of Central Intelligence”.

Statutory Notes and Related Subsidiaries

Effective Date of 2004 Amendment

Pub. L. 108–458Apr. 21, 2005Apr. 21, 2005section 3001 of this titleFor Determination by President that amendment by take effect on , see Memorandum of President of the United States, , 70 F.R. 23925, set out as a note under .

Pub. L. 108–458Dec. 17, 2004section 1097(a) of Pub. L. 108–458 section 3001 of this titleAmendment by effective not later than six months after , except as otherwise expressly provided, see , set out in an Effective Date of 2004 Amendment; Transition Provisions note under .

Executive Documents

Ex. Ord. No. 12139. Exercise of Certain Authority Respecting Electronic Surveillance

May 23, 1979July 15, 2005Oct. 7, 2008Ex. Ord. No. 12139, , 44 F.R. 30311, as amended by Ex. Ord. No. 13383, § 1, , 70 F.R. 41933; Ex. Ord. No. 13475, § 1, , 73 F.R. 60095, provided:

50 U.S.C. 1802By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 ( 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:

50 U.S.C. 1802(a)1–101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (), 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.

50 U.S.C. 1802(b)50 U.S.C. 18031–102. Pursuant to Section 102(b) of the Foreign Intelligence Act of 1978 (), the Attorney General is authorized to approve applications to the court having jurisdiction under Section 103 of that Act [] to obtain orders for electronic surveillance for the purpose of obtaining foreign intelligence information.

50 U.S.C. 1804(a)(6)1–103. Pursuant to Section 104(a)(6) of the Foreign Intelligence Surveillance Act of 1978 (), 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)(6) of the Act in support of applications to conduct electronic surveillance:

(a) Secretary of State.

(b) Secretary of Defense.

(d) Director of the Federal Bureau of Investigation.

(e) Deputy Secretary of State.

(f) Deputy Secretary of Defense.

(g) Director of the Central Intelligence Agency.

(h) Principal Deputy Director of National Intelligence.

(i) Deputy Director of the Federal Bureau of Investigation.

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. The requirement of the preceding sentence that the named official must be appointed by the President with the advice and consent of the Senate does not apply to the Deputy Director of the Federal Bureau of Investigation.

[1–104, 1–105. Amended Ex. Ord. No. 12036, formerly set out under section 401 (now 3001) of this title.]