50 U.S.C. § 1823 | Application for order

(a)

Submission by Federal officer; approval of Attorney General; contents

Each application for an order approving a physical search under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements for such application as set forth in this subchapter. Each application shall include—

(1)

the identity of the Federal officer making the application;

(2)

the identity, if known, or a description of the target of the search, and a description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;

(3)

a sworn statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that—

(A)

section 1801(b)(2)(B) of this title section 1801(b)(2)(B) of this title the target of the physical search is a foreign power or an agent of a foreign power, and, in the case of a target that is a United States person alleged to be acting as an agent of a foreign power (as described in ), that a violation of the criminal statutes of the United States as referred to in has occurred or is about to occur;

(B)

the premises or property to be searched contains foreign intelligence information; and

(C)

the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;

(4)

a statement of the proposed minimization procedures;

(5)

a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted;

(6)

a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive branch officers employed in the area of national security or defense and appointed by the President, by and with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—

(A)

that the certifying official deems the information sought to be foreign intelligence information;

(B)

that a significant purpose of the search is to obtain foreign intelligence information;

(C)

that such information cannot reasonably be obtained by normal investigative techniques;

(D)

section 1801(e) of this title that designates the type of foreign intelligence information being sought according to the categories described in ;

(E)

includes a statement explaining the basis for the certifications required by subparagraphs (C) and (D); and

(F)

section 527 of title 26 that none of the information included in the statement described in paragraph (3) was solely produced by, derived from information produced by, or obtained using the funds of, a political organization (as such term is defined in ), unless—

(i)

the political organization is clearly identified in the body of the statement described in paragraph (3);

(ii)

the information has been corroborated; and

(iii)

the investigative techniques used to corroborate the information are clearly identified in the body of the statement described in paragraph (3); and

(G)

that none of the information included in the statement described in paragraph (3) is attributable to or derived from the content of a media source unless the statement includes a clear identification of each author of that content, where applicable, the publisher of that content, information to corroborate that which was derived from the media source, and an explanation of the investigative techniques used to corroborate the information;

(7)

where the physical search involves a search of the residence of a United States person, the Attorney General shall state what investigative techniques have previously been utilized to obtain the foreign intelligence information concerned and the degree to which these techniques resulted in acquiring such information;

(8)

a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, premises, or property specified in the application, and the action taken on each previous application;

(9)

1 So in original. The word “and” probably should not appear.

in the case of an application for an extension of an order under this subchapter in which the target of the physical search is a United States person, a summary statement of the foreign intelligence information obtained pursuant to the original order (and any preceding extension thereof) as of the date of the application for the extension, or a reasonable explanation of the failure to obtain such information; and 

(10)

a certification by the applicant that, to the best knowledge of the applicant, the Attorney General or a designated attorney for the Government has been apprised of all information that might reasonably—

(A)

call into question the accuracy of the application or the reasonableness of any assessment in the application conducted by the department or agency on whose behalf the application is made; or

(B)

section 1824(a) of this title 2

2 So in original. The period probably should be “; and”.

otherwise raise doubts with respect to the findings required under .

(11)

non-cumulative information known to the applicant or declarant that is potentially exculpatory regarding the requested legal findings or any assessment in the application.

(b)

Additional affidavits or certifications

The Attorney General may require any other affidavit or certification from any other officer in connection with the application.

(c)

Additional information

section 1824 of this titleThe judge may require the applicant to furnish such other information as may be necessary to make the determinations required by .

(d)

Personal review by Attorney General

(1)

(A)

section 1801(b)(2) of this title Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in .

(B)

Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.

(C)

Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.

(2)

(A)

If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.

(B)

Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.

(C)

Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.

Pub. L. 95–511, title III, § 303 Pub. L. 103–359, title VIII, § 807(a)(3)Oct. 14, 1994108 Stat. 3446 Pub. L. 106–567, title VI, § 603(a)Dec. 27, 2000114 Stat. 2852 Pub. L. 107–56, title II, § 218Oct. 26, 2001115 Stat. 291 Pub. L. 108–458, title I, § 1071(e)Dec. 17, 2004118 Stat. 3691 Pub. L. 110–261, title I, § 107(a)July 10, 2008122 Stat. 2462 Pub. L. 111–259, title VIII, § 806(a)(2)Oct. 7, 2010124 Stat. 2748 Pub. L. 118–49Apr. 20, 2024138 Stat. 870–873(, as added , , ; amended , , ; , , ; , , ; , , ; , , ; , §§ 6(a)(2), (b)(2), (c)(2), (e)(2), (f)(2), 10(a)(2), (b)(2), , , 875, 877.)

Editorial Notes

Amendments

Pub. L. 118–49, § 6(a)(2)2024—Subsec. (a)(3). , substituted “a sworn statement of” for “a statement of” in introductory provisions.

Pub. L. 118–49, § 6(f)(2)section 1801(b)(2)(B) of this title section 1801(b)(2)(B) of this titleSubsec. (a)(3)(A). , inserted before semicolon at end “, and, in the case of a target that is a United States person alleged to be acting as an agent of a foreign power (as described in ), that a violation of the criminal statutes of the United States as referred to in has occurred or is about to occur”.

Pub. L. 118–49, § 6(b)(2)Subsec. (a)(6)(F). , added subpar. (F).

Pub. L. 118–49, § 6(c)(2)Subsec. (a)(6)(G). , added subpar. (G).

Pub. L. 118–49, § 6(e)(2)Subsec. (a)(9). , added par. (9).

Pub. L. 118–49, § 10(a)(2)Subsec. (a)(10). , added par. (10).

Pub. L. 118–49, § 10(b)(2)Subsec. (a)(11). , added par. (11).

Pub. L. 111–259 Pub. L. 108–4582010—Subsec. (d)(1)(A). made technical amendment to directory language of . See 2004 Amendment note below.

Pub. L. 110–261, § 107(a)(1)(A)2008—Subsec. (a)(2). –(C), redesignated par. (3) as (2), struck out “detailed” before “description of the premises”, and struck out former par. (2) which read as follows: “the authority conferred on the Attorney General by the President and the approval of the Attorney General to make the application;”.

Pub. L. 110–261, § 107(a)(1)(B)Subsec. (a)(3). , (D), redesignated par. (4) as (3) and inserted “or is about to be” before “owned” in subpar. (C). Former par. (3) redesignated (2).

Pub. L. 110–261, § 107(a)(1)(B)Subsec. (a)(4), (5). , redesignated pars. (5) and (6) as (4) and (5), respectively. Former par. (4) redesignated (3).

Pub. L. 110–261, § 107(a)(1)(B)Subsec. (a)(6). , (E), redesignated par. (7) as (6) and substituted “Affairs,” for “Affairs or” and “Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—” for “Senate—” in introductory provisions. Former par. (6) redesignated (5).

Pub. L. 110–261, § 107(a)(1)(B)Subsec. (a)(7) to (9). , redesignated pars. (8) and (9) as (7) and (8), respectively. Former par. (7) redesignated (6).

Pub. L. 110–261, § 107(a)(2)Subsec. (d)(1)(A). , substituted “the Director of National Intelligence, or the Director of the Central Intelligence Agency” for “or the Director of National Intelligence”.

Pub. L. 108–458 Pub. L. 111–2592004—Subsec. (d)(1)(A). , as amended by , substituted “Director of National Intelligence” for “Director of Central Intelligence”.

Pub. L. 107–562001—Subsec. (a)(7)(B). substituted “a significant purpose” for “the purpose”.

Pub. L. 106–5672000—Subsec. (d). added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2024 Amendment

section 6(a)(2) of Pub. L. 118–49Apr. 20, 2024section 6(a)(5) of Pub. L. 118–49 section 1804 of this titleAmendment by applicable with respect to applications made on or after the date that is 120 days after , see , set out as a note under .

section 6(b)(2) of Pub. L. 118–49Apr. 20, 2024section 6(b)(3) of Pub. L. 118–49 section 1804 of this titleAmendment by applicable with respect to applications made on or after the date that is 120 days after , see , set out as a note under .

section 6(c)(2) of Pub. L. 118–49Apr. 20, 2024section 6(c)(3) of Pub. L. 118–49 section 1804 of this titleAmendment by applicable with respect to applications made on or after the date that is 120 days after , see , set out as a note under .

section 6(e)(2) of Pub. L. 118–49Apr. 20, 2024section 6(e)(3) of Pub. L. 118–49 section 1804 of this titleAmendment by applicable with respect to applications made on or after the date that is 120 days after , see , set out as a note under .

section 6(f)(2) of Pub. L. 118–49Apr. 20, 2024section 6(f)(3) of Pub. L. 118–49 section 1804 of this titleAmendment by applicable with respect to applications made on or after the date that is 120 days after , see , set out as a note under .

section 10(a)(2) of Pub. L. 118–49Apr. 20, 2024section 10(a)(6) of Pub. L. 118–49 section 1804 of this titleAmendment by applicable with respect to applications made on or after the date that is 120 days after , see , set out as a note under .

section 10(b)(2) of Pub. L. 118–49Apr. 20, 2024section 10(b)(6) of Pub. L. 118–49 section 1804 of this titleAmendment by applicable with respect to applications made on or after the date that is 120 days after , see , set out as a note under .

Effective Date of 2008 Amendment

Pub. L. 110–261July 10, 2008section 404 of Pub. L. 110–261 section 1801 of this title section 402 of Pub. L. 110–261 section 1801 of this titleAmendment by effective , except as provided in , set out as a Transition Procedures note under , see , set out as an Effective Date of 2008 Amendment note under .

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 .

Effective Date

Oct. 14, 1994section 807(c) of Pub. L. 103–359 section 1821 of this titleSection effective 90 days after , with exception for certain physical searches approved by the Attorney General to gather foreign intelligence information, see , set out as a note under .

Executive Documents

Officials Designated To Make Certifications

Feb. 9, 1995section 1822 of this titleFor provisions listing officials designated by President to make certifications required by subsec. (a)(7) of this section, see Ex. Ord. No. 12949, § 3, , 60 F.R. 8169, set out as a note under .