Limitation on directives under Foreign Intelligence Surveillance Act of 1978 relating to certain electronic communication service providers

(a) In general Section 702(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(i)) is amended by adding at the end the following: (7) Limitation relating to certain electronic communication service providers (A) Definitions In this paragraph: (i) Appropriate committees of Congress The term appropriate committees of Congress means— (I) the congressional intelligence committees; (II) the Committee on the Judiciary of the Senate; and (III) the Committee on the Judiciary of the House of Representatives. (ii) Covered electronic communication service provider (I) In general Subject to subclause (II), the term covered electronic communication service provider means— (aa) a service provider described in section 701(b)(4)(E); (bb) a custodian of an entity as defined in section 701(b)(4)(F); or (cc) an officer, employee, or agent of a service provider described in section 701(b)(4)(E). (II) Exclusion The term covered electronic communication service provider does not include— (aa) an electronic communication service provider described in subparagraph (A), (B), (C), or (D) of section 701(b)(4); or (bb) an officer, employee, or agent of an electronic communication service provider described in subparagraph (A), (B), (C), or (D) of section 701(b)(4), to the extent that the electronic communication service provider is providing the United States Government with information, facilities, or assistance pursuant to such subparagraphs. (iii) Covered opinions The term covered opinions means the opinions of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review authorized for public release on August 23, 2023 (Opinion and Order, In re Petition to Set Aside or Modify Directive Issued to [REDACTED], No. [REDACTED], (FISA Ct. [REDACTED] 2022) (Contreras J.); Opinion, In re Petition to Set Aside or Modify Directive Issued to [REDACTED], No. [REDACTED], (FISA Ct. Rev. [REDACTED] 2023) (Sentelle, J.; Higginson, J.; Miller J.)). (B) Limitation A directive may not be issued under paragraph (1) to a covered electronic communication service provider unless the covered electronic communication service provider is a provider of the type of service at issue in the covered opinions. (C) Declassification review required (i) In general Not later than 180 days after the date of enactment of the SAFE Act, the Director of National Intelligence, in consultation with the Attorney General, shall complete a declassification review in accordance with section 3 of Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or any successor order, (in this subparagraph referred to as Executive Order 13526) and, consistent with that review, make publicly available to the greatest extent practicable the type of service provider and services at issue in the covered opinions. (ii) Specific inquiry In conducting the review required under clause (i), the Director of National Intelligence and the Attorney General shall determine— (I) whether the information described in clause (i) continues to meet the requirements for classification set forth in Executive Order 13526; and (II) if the information described in clause (i) continues to meet the requirements for classification set forth in Executive Order 13526, whether the information should nonetheless be declassified pursuant to section 3.1(d) of Executive Order 13526. (iii) Factors In making a determination under subclause (II) of clause (ii), the Director of National Intelligence and the Attorney General shall consider— (I) the public interest served by ensuring that laws are public and transparent; and (II) the fact that the type of service provider or services at issue in the covered opinions have been the subject of public disclosures. (D) Requirements for directives to covered electronic communication service providers (i) In general Subject to clause (ii), any directive issued under paragraph (1) on or after the date of the enactment of the SAFE Act to a covered electronic communication service provider that is not prohibited by subparagraph (B) of this paragraph shall include a summary description of the services at issue in the covered opinions. (ii) Duplicate summaries not required A directive need not include a summary description of the services at issue in the covered opinions if such summary was included in a prior directive issued to the covered electronic communication service provider and the summary has not materially changed. (E) Foreign Intelligence Surveillance Court notification and review (i) Notification (I) In general Subject to subclause (II), on or after the date of the enactment of the SAFE Act, each time the Attorney General and the Director of National Intelligence serve a directive under paragraph (1) to a covered electronic communication service provider that is not prohibited by subparagraph (B) and each time the Attorney General and the Director materially change a directive under paragraph (1) served on a covered electronic communication service provider that is not prohibited by subparagraph (B), the Attorney General shall provide the directive to the Foreign Intelligence Surveillance Court on or before the date that is 7 days after the date on which the Attorney General and the Director served the directive, along with a description of the covered electronic communication service provider to whom the directive is issued and the services at issue. (II) Duplication not required The Attorney General does not need to provide a directive or description to the Foreign Intelligence Surveillance Court under subclause (I) if a directive and description concerning the covered electronic communication service provider was previously provided to the Court and the directive or description has not materially changed. (ii) Additional information As soon as feasible and not later than the initiation of collection, the Attorney General shall, for each directive described in clause (i), provide the Foreign Intelligence Surveillance Court a summary description of the type of equipment to be accessed, the nature of the access, and the form of assistance required pursuant to the directive. (iii) Review (I) In general The Foreign Intelligence Surveillance Court may review a directive received by the Court under clause (i) to determine whether the directive is consistent with subparagraph (B) and affirm, modify, or set aside the directive. (II) Notice of intent to review Not later than 7 days after the date on which the Court receives information under clause (ii) with respect to a directive, the Court shall provide notice to the Attorney General and cleared counsel for the covered electronic communication service provider indicating whether the Court intends to undertake a review under subclause (I) of this clause. (III) Completion of reviews In a case in which the Court provides notice under subclause (II) indicating that the Court intends to review a directive under subclause (I), the Court shall, not later than 30 days after the date on which the Court provides notice under subclause (II) with respect to the directive, complete the review. (F) Congressional oversight (i) Notification (I) In general Subject to subclause (II), on or after the date of the enactment of the SAFE Act, each time the Attorney General and the Director of National Intelligence serve a directive under paragraph (1) on a covered electronic communication service provider that is not prohibited by subparagraph (B) and each time the Attorney General and the Director materially change a directive under paragraph (1) served on a covered electronic communication service provider that is not prohibited by subparagraph (B), the Attorney General shall submit to the appropriate committees of Congress the directive on or before the date that is 7 days after the date on which the Attorney General and the Director serve the directive, along with a description of the covered electronic communication service provider to whom the directive is issued and the services at issue. (II) Duplication not required The Attorney General does not need to submit a directive or description to the appropriate committees of Congress under subclause (I) if a directive and description concerning the covered electronic communication service provider was previously submitted to the appropriate committees of Congress and the directive or description has not materially changed. (ii) Additional information As soon as feasible and not later than the initiation of collection, the Attorney General shall, for each directive described in clause (i), provide the appropriate committees of Congress a summary description of the type of equipment to be accessed, the nature of the access, and the form of assistance required pursuant to the directive. (iii) Reporting (I) Quarterly reports Not later than 90 days after the date of the enactment of the SAFE Act and not less frequently than once each quarter thereafter, the Attorney General shall submit to the appropriate committees of Congress a report on the number of directives served, during the period covered by the report, under paragraph (1) to a covered electronic communication service provider and the number of directives provided during the same period to the Foreign Intelligence Surveillance Court under subparagraph (E)(i). (II) Form of reports Each report submitted pursuant to subclause (I) shall be submitted in unclassified form, but may include a classified annex. (III) Submission of court opinions Not later than 45 days after the date on which the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review issues an opinion relating to a directive issued to a covered electronic communication service provider under paragraph (1), the Attorney General shall submit to the appropriate committees of Congress a copy of the opinion.. (b) Sunset Effective on December 31, 2026, section 702(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(i)), as amended by this section, is amended by striking paragraph (7).