Foreign Intelligence Surveillance Court reform

(a) Expansion of appointment authority (1) In general Section 103(i)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(i)(2)) is amended— (A) in subparagraph (A)— (i) by striking clause (i) and inserting the following: (i) shall, unless the court issues a finding that appointment is not appropriate, appoint one or more individuals who have been designated under paragraph (1), not fewer than one of whom possesses privacy and civil liberties expertise, unless the court finds that such a qualification is inappropriate, to serve as amicus curiae to assist the court in the consideration of any application or motion for an order or review that, in the opinion of the court— (I) presents a novel or significant interpretation of the law; (II) presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution of the United States; (III) presents or involves a sensitive investigative matter; (IV) presents a request for approval of a new program, a new technology, or a new use of existing technology; (V) presents a request for reauthorization of programmatic surveillance; or (VI) otherwise presents novel or significant civil liberties issues;; and (ii) in clause (iii), by striking, unless the court issues a finding that such appointment is not appropriate or is likely to result in undue delay; (B) by striking subparagraph (B); and (C) by redesignating subparagraph (C) as subparagraph (B). (2) Definition of sensitive investigative matter Section 103(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(i)) is amended by adding at the end the following: (12) Definition In this subsection, the term sensitive investigative matter means— (A) an investigative matter involving the activities of— (i) a domestic public official or political candidate, or an individual serving on the staff of such an official or candidate; (ii) a domestic religious or political organization, or a known or suspected United States person prominent in such an organization; or (iii) the domestic news media; or (B) any other investigative matter involving a domestic entity or a known or suspected United States person that, in the judgment of the applicable court established under subsection (a) or (b), is as sensitive as an investigative matter described in subparagraph (A).. (b) Authority to seek review Section 103(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(i)), as amended by subsection (a) of this section, is amended— (1) in paragraph (4)— (A) in the paragraph heading, by inserting; authority after Duties; (B) in the matter preceding subparagraph (A), by striking shall; (C) by striking subparagraph (A); (D) by redesignating subparagraph (B) as subparagraph (A); (E) in subparagraph (A), as so redesignated— (i) in the matter preceding clause (i), by inserting shall before provide; (ii) in clause (i), by inserting before the semicolon at the end the following:, including legal arguments regarding any privacy or civil liberties interest of any United States person that would be significantly impacted by the application or motion; and (iii) in clause (iii), by striking the period at the end and inserting; and; and (F) by adding at the end the following: (B) may seek leave to raise any novel or significant privacy or civil liberties issue relevant to the application or motion or other issue directly impacting the legality of the proposed electronic surveillance with the court, regardless of whether the court has requested assistance on that issue.; (2) by redesignating paragraphs (7) through (12) as paragraphs (8) through (13), respectively; and (3) by inserting after paragraph (6) the following: (7) Authority to seek review of decisions (A) FISA court decisions (i) Petition Following issuance of an order under this Act by the court established under subsection (a), an amicus curiae appointed under paragraph (2) may petition the court to certify for review to the court established under subsection (b) a question of law pursuant to subsection (j). (ii) Written statement of reasons If the court established under subsection (a) denies a petition under this subparagraph, the court shall provide for the record a written statement of the reasons for the denial. (iii) Appointment Upon certification of any question of law pursuant to this subparagraph, the court established under subsection (b) shall appoint the amicus curiae to assist the court in its consideration of the certified question, unless the court issues a finding that such appointment is not appropriate. (B) FISA court of review decisions An amicus curiae appointed under paragraph (2) may petition the court established under subsection (b) to certify for review to the Supreme Court of the United States any question of law pursuant to section 1254(2) of title 28, United States Code. (C) Declassification of referrals For purposes of section 602, a petition filed under subparagraph (A) or (B) of this paragraph and all of its content shall be considered a decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review described in section 602(a).. (c) Access to information (1) Application and materials Section 103(i)(6) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(i)(6)) is amended by striking subparagraph (A) and inserting the following: (A) In general (i) Right of amicus If a court established under subsection (a) or (b) appoints an amicus curiae under paragraph (2), the amicus curiae— (I) shall have access, to the extent such information is available to the Government, to— (aa) the application, certification, petition, motion, and other information and supporting materials, including any information described in section 901, submitted to the court established under subsection (a) in connection with the matter in which the amicus curiae has been appointed, including access to any relevant legal precedent (including any such precedent that is cited by the Government, including in such an application); (bb) an unredacted copy of each relevant decision made by the court established under subsection (a) or the court established under subsection (b) in which the court decides a question of law, without regard to whether the decision is classified; and (cc) any other information or materials that the court determines are relevant to the duties of the amicus curiae; and (II) may make a submission to the court requesting access to any other particular materials or information (or category of materials or information) that the amicus curiae believes to be relevant to the duties of the amicus curiae. (ii) Supporting documentation regarding accuracy The court established under subsection (a), upon the motion of an amicus curiae appointed under paragraph (2) or upon its own motion, may require the Government to make available the supporting documentation described in section 902.. (2) Clarification of access to certain information Section 103(i)(6) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(i)(6)) is amended— (A) in subparagraph (B), by striking may and inserting shall; and (B) by striking subparagraph (C) and inserting the following: (C) Classified information An amicus curiae designated or appointed by the court shall have access, to the extent such information is available to the Government, to unredacted copies of each opinion, order, transcript, pleading, or other document of the court established under subsection (a) and the court established under subsection (b), including, if the individual is eligible for access to classified information, any classified documents, information, and other materials or proceedings.. (3) Consultation among amici curiae Section 103(i)(6) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(i)(6)) is amended— (A) by redesignating subparagraph (D) as subparagraph (E); and (B) by inserting after subparagraph (C) the following: (D) Consultation among amici curiae An amicus curiae appointed under paragraph (2) by the court established under subsection (a) or the court established under subsection (b) may consult with 1 or more of the other individuals designated by the court to serve as amicus curiae pursuant to paragraph (1) of this subsection regarding any of the information relevant to any assigned proceeding.. (d) Effective date The amendments made by this section shall take effect on the date of enactment of this Act and shall apply with respect to proceedings under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) that take place on or after, or are pending on, that date.