Last Updated on June 1, 2019 by LawEuro
[115th Congress Public Law 118]
[From the U.S. Government Publishing Office]
[[Page 132 STAT. 3]]
Public Law 115-118
115th Congress
An Act
To amend the Foreign Intelligence Surveillance Act of 1978 to improve
foreign intelligence collection and the safeguards, accountability, and
oversight of acquisitions of foreign intelligence, to extend title VII
of such Act, and for other purposes. <<NOTE: Jan. 19, 2018 – [S.
139]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: FISA Amendments
Reauthorization Act of 2017. 50 USC 1801 note.>>
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.–This Act may be cited as the “FISA Amendments
Reauthorization Act of 2017”.
(b) Table of Contents.–The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendments to the Foreign Intelligence Surveillance Act of 1978.
TITLE I–ENHANCEMENTS TO FOREIGN INTELLIGENCE COLLECTION AND SAFEGUARDS,
ACCOUNTABILITY, AND OVERSIGHT
Sec. 101. Querying procedures required.
Sec. 102. Use and disclosure provisions.
Sec. 103. Congressional review and oversight of abouts collection.
Sec. 104. Publication of minimization procedures under section 702.
Sec. 105. Section 705 emergency provision.
Sec. 106. Compensation of amici curiae and technical experts.
Sec. 107. Additional reporting requirements.
Sec. 108. Improvements to Privacy and Civil Liberties Oversight Board.
Sec. 109. Privacy and civil liberties officers.
Sec. 110. Whistleblower protections for contractors of the intelligence
community.
Sec. 111. Briefing on notification requirements.
Sec. 112. Inspector General report on queries conducted by Federal
Bureau of Investigation.
TITLE II–EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND
OTHER MATTERS
Sec. 201. Extension of title VII of FISA; effective dates.
Sec. 202. Increased penalty for unauthorized removal and retention of
classified documents or material.
Sec. 203. Report on challenges to the effectiveness of foreign
intelligence surveillance.
Sec. 204. Comptroller General study on the classification system and
protection of classified information.
Sec. 205. Technical amendments and amendments to improve procedures of
the Foreign Intelligence Surveillance Court of Review.
Sec. 206. Severability.
SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or a
repeal of, a section or other provision, the reference shall be
considered to be made to a section or other provision of the
[[Page 132 STAT. 4]]
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
TITLE I–ENHANCEMENTS TO FOREIGN INTELLIGENCE COLLECTION AND SAFEGUARDS,
ACCOUNTABILITY, AND OVERSIGHT
SEC. 101. QUERYING PROCEDURES REQUIRED.
(a) Querying Procedures.–
(1) In general.–Section 702 (50 U.S.C. 1881a) is amended–
(A) by redesignating subsections (f) through (l) as
subsections (g) through (m), respectively; and
(B) by inserting after subsection (e) the following
new subsection:
“(f) Queries.–
“(1) <<NOTE: Consultations.>> Procedures required.–
“(A) Requirement to adopt.–The Attorney General,
in consultation with the Director of National
Intelligence, shall adopt querying procedures consistent
with the requirements of the fourth amendment to the
Constitution of the United States for information
collected pursuant to an authorization under subsection
(a).
“(B) Record of united states person query terms.–
The Attorney General, in consultation with the Director
of National Intelligence, shall ensure that the
procedures adopted under subparagraph (A) include a
technical procedure whereby a record is kept of each
United States person query term used for a query.
“(C) Judicial review.–The procedures adopted in
accordance with subparagraph (A) shall be subject to
judicial review pursuant to subsection (j).
“(2) Access to results of certain queries conducted by
fbi.–
“(A) Court order required for fbi review of certain
query results in criminal investigations unrelated to
national security.–Except as provided by subparagraph
(E), in connection with a predicated criminal
investigation opened by the Federal Bureau of
Investigation that does not relate to the national
security of the United States, the Federal Bureau of
Investigation may not access the contents of
communications acquired under subsection (a) that were
retrieved pursuant to a query made using a United States
person query term that was not designed to find and
extract foreign intelligence information unless–
“(i) the Federal Bureau of Investigation
applies for an order of the Court under
subparagraph (C); and
“(ii) the Court enters an order under
subparagraph (D) approving such application.
“(B) Jurisdiction.–The Court shall have
jurisdiction to review an application and to enter an
order approving the access described in subparagraph
(A).
[[Page 132 STAT. 5]]
“(C) Application.–Each application for an order
under this paragraph shall be made by a Federal officer
in writing upon oath or affirmation to a judge having
jurisdiction under subparagraph (B). Each application
shall require the approval of the Attorney General based
upon the finding of the Attorney General that the
application satisfies the criteria and requirements of
such application, as set forth in this paragraph, and
shall include–
“(i) the identity of the Federal officer
making the application; and
“(ii) an affidavit or other information
containing a statement of the facts and
circumstances relied upon by the applicant to
justify the belief of the applicant that the
contents of communications described in
subparagraph (A) covered by the application would
provide evidence of–
“(I) criminal activity;
“(II) contraband, fruits of a
crime, or other items illegally
possessed by a third party; or
“(III) property designed for use,
intended for use, or used in committing
a crime.
“(D) <<NOTE: Courts.>> Order.–Upon an application
made pursuant to subparagraph (C), the Court shall enter
an order approving the accessing of the contents of
communications described in subparagraph (A) covered by
the application if the Court finds probable cause to
believe that such contents would provide any of the
evidence described in subparagraph (C)(ii).
“(E) Exception.–The requirement for an order of
the Court under subparagraph (A) to access the contents
of communications described in such subparagraph shall
not apply with respect to a query if the Federal Bureau
of Investigation determines there is a reasonable belief
that such contents could assist in mitigating or
eliminating a threat to life or serious bodily harm.
“(F) Rule of construction.–Nothing in this
paragraph may be construed as–
“(i) limiting the authority of the Federal
Bureau of Investigation to conduct lawful queries
of information acquired under subsection (a);
“(ii) limiting the authority of the Federal
Bureau of Investigation to review, without a court
order, the results of any query of information
acquired under subsection (a) that was reasonably
designed to find and extract foreign intelligence
information, regardless of whether such foreign
intelligence information could also be considered
evidence of a crime; or
“(iii) prohibiting or otherwise limiting the
ability of the Federal Bureau of Investigation to
access the results of queries conducted when
evaluating whether to open an assessment or
predicated investigation relating to the national
security of the United States.
“(3) Definitions.–In this subsection:
“(A) The term `contents’ has the meaning given that
term in section 2510(8) of title 18, United States Code.
“(B) The term `query’ means the use of one or more
terms to retrieve the unminimized contents or
noncontents
[[Page 132 STAT. 6]]
located in electronic and data storage systems of
communications of or concerning United States persons
obtained through acquisitions authorized under
subsection (a).”.
(2) <<NOTE: Certifications.>> Application.–Subsection (f)
of section 702 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881a), as added by paragraph (1), shall apply
with respect to certifications submitted under subsection (h) of
such section to the Foreign Intelligence Surveillance Court
after January 1, 2018.
(b) Conforming Amendments.–
(1) Amendments to section 702 of fisa.–Such section 702 is
further amended–
(A) in subsection (a), by striking “with subsection
(i)(3)” and inserting “with subsection (j)(3)”;
(B) in subsection (c)–
(i) in paragraph (1)(B), by striking “with
subsection (g)” and inserting “with subsection
(h)”;
(ii) in paragraph (2), by striking “to
subsection (i)(3)” and inserting “to subsection
(j)(3)”; and
(iii) in paragraph (3)–
(I) in subparagraph (A), by striking
“with subsection (g)” and inserting
“with subsection (h)”; and
(II) in subparagraph (B)–
(aa) by striking “to
subsection (i)(1)(C)” and
inserting “to subsection
(j)(1)(C)”; and
(bb) by striking “under
subsection (i)” and inserting
“under subsection (j)”;
(C) in subsection (d)(2), by striking “to
subsection (i)” and inserting “to subsection (j)”;
(D) in subsection (e)(2), by striking “to
subsection (i)” and inserting “to subsection (j)”;
(E) in subsection (h), as redesignated by subsection
(a)(1)–
(i) in paragraph (2)(A)(iii), by striking
“with subsection (f)” and inserting “with
subsection (g)”;
(ii) in paragraph (3), by striking “with
subsection (i)(1)(C)” and inserting “with
subsection (j)(1)(C)”; and
(iii) in paragraph (6), by striking “to
subsection (i)” and inserting “to subsection
(j)”;
(F) in subsection (j), as redesignated by subsection
(a)(1)–
(i) in paragraph (1)–
(I) in subparagraph (A), by striking
“targeting and minimization procedures
adopted in accordance with subsections
(d) and (e)” and inserting “targeting,
minimization, and querying procedures
adopted in accordance with subsections
(d), (e), and (f)(1)”;
(II) in subparagraph (B), by
striking “targeting and minimization
procedures adopted in accordance with
subsections (d) and (e)” and inserting
“targeting, minimization, and querying
procedures adopted in accordance with
subsections (d), (e), and (f)(1)”; and
(III) in subparagraph (C), by
striking “targeting and minimization
procedures adopted in accordance with
subsections (d) and (e)” and
[[Page 132 STAT. 7]]
inserting “targeting, minimization, and
querying procedures adopted in
accordance with subsections (d), (e),
and (f)(1)”;
(ii) in paragraph (2)–
(I) in subparagraph (A), by striking
“with subsection (g)” and inserting
“with subsection (h)”; and
(II) by adding at the end the
following:
“(D) Querying procedures.–The querying procedures
adopted in accordance with subsection (f)(1) to assess
whether such procedures comply with the requirements of
such subsection.”;
(iii) in paragraph (3)–
(I) in subparagraph (A)–
(aa) by striking “with
subsection (g)” and inserting
“with subsection (h)”; and
(bb) by striking “targeting
and minimization procedures
adopted in accordance with
subsections (d) and (e)” and
inserting “targeting,
minimization, and querying
procedures adopted in accordance
with subsections (d), (e), and
(f)(1)”; and
(II) in subparagraph (B), in the
matter before clause (i)–
(aa) by striking “with
subsection (g)” and inserting
“with subsection (h)”; and
(bb) by striking “with
subsections (d) and (e)” and
inserting “with subsections
(d), (e), and (f)(1)”; and
(iv) in paragraph (5)(A)–
(I) by striking “with subsection
(g)” and inserting “with subsection
(h)”; and
(II) by striking “with subsections
(d) and (e)” and inserting “with
subsections (d), (e), and (f)(1)”; and
(G) in subsection (m), as redesignated by subsection
(a)(1)–
(i) in paragraph (1), in the matter before
subparagraph (A)–
(I) by striking “targeting and
minimization procedures adopted in
accordance with subsections (d) and
(e)” and inserting “targeting,
minimization, and querying procedures
adopted in accordance with subsections
(d), (e), and (f)(1)”; and
(II) by striking “with subsection
(f)” and inserting “with subsection
(g)”; and
(ii) in paragraph (2)(A)–
(I) by striking “targeting and
minimization procedures adopted in
accordance with subsections (d) and
(e)” and inserting “targeting,
minimization, and querying procedures
adopted in accordance with subsections
(d), (e), and (f)(1)”; and
(II) by striking “with subsection
(f)” and inserting “with subsection
(g)”.
(2) Amendments to fisa.–The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is further
amended–
[[Page 132 STAT. 8]]
(A) by striking “section 702(h)” each place it
appears and inserting “section 702(i)”;
(B) by striking “section 702(g)” each place it
appears and inserting “section 702(h)”; and
(C) in section 707(b)(1)(G)(ii), by striking
“subsections (d), (e), and (f)” and inserting
“subsections (d), (e), (f)(1), and (g)”.
(3) Amendments to fisa amendments act of 2008.–Section 404
of the Foreign Intelligence Surveillance Act of 1978 Amendments
Act of 2008 (Public Law 110-261; 50 U.S.C. 1801 note) is
amended–
(A) in subsection (a)(7)(B)–
(i) by striking “under section 702(i)(3)”
and inserting “under section 702(j)(3)”; and
(ii) by striking “of section 702(i)(4)” and
inserting “of section 702(j)(4)”;
(B) in subsection (b)–
(i) in paragraph (3)–
(I) in subparagraph (A), by striking
“to section 702(h)” and inserting “to
section 702(i)”; and
(II) in subparagraph (B)–
(aa) by striking “section
702(h)(3) of” and inserting
“section 702(i)(3) of”; and
(bb) by striking “to
section 702(h)” and inserting
“to section 702(i)”; and
(ii) in paragraph (4)–
(I) in subparagraph (A), by striking
“and sections 702(l)” and inserting
“and sections 702(m)”; and
(II) in subparagraph (B)(iv), by
striking “or section 702(l)” and
inserting “or section 702(m)”.
SEC. 102. USE AND DISCLOSURE PROVISIONS.
(a) End Use Restriction.–Section 706(a) (50 U.S.C. 1881e(a)) is
amended–
(1) by striking “Information acquired” and inserting the
following:
“(1) In general.–Information acquired”; and
(2) by adding at the end the following:
“(2) United states persons.–
“(A) In general.–Any information concerning a
United States person acquired under section 702 shall
not be used in evidence against that United States
person pursuant to paragraph (1) in any criminal
proceeding unless–
“(i) the Federal Bureau of Investigation
obtained an order of the Foreign Intelligence
Surveillance Court to access such information
pursuant to section 702(f)(2); or
“(ii) <<NOTE: Determination.>> the Attorney
General determines that–
“(I) the criminal proceeding
affects, involves, or is related to the
national security of the United States;
or
“(II) the criminal proceeding
involves–
“(aa) death;
“(bb) kidnapping;
[[Page 132 STAT. 9]]
“(cc) serious bodily
injury, as defined in section
1365 of title 18, United States
Code;
“(dd) conduct that
constitutes a criminal offense
that is a specified offense
against a minor, as defined in
section 111 of the Adam Walsh
Child Protection and Safety Act
of 2006 (34 U.S.C. 20911);
“(ee) incapacitation or
destruction of critical
infrastructure, as defined in
section 1016(e) of the USA
PATRIOT Act (42 U.S.C.
5195c(e));
“(ff) cybersecurity,
including conduct described in
section 1016(e) of the USA
PATRIOT Act (42 U.S.C. 5195c(e))
or section 1029, 1030, or 2511
of title 18, United States Code;
“(gg) transnational crime,
including transnational
narcotics trafficking and
transnational organized crime;
or
“(hh) human trafficking.
“(B) No judicial review.–A determination by the
Attorney General under subparagraph (A)(ii) is not
subject to judicial review.”.
(b) Intelligence Community Disclosure Provision.–Section 603 (50
U.S.C. 1873) is amended–
(1) in subsection (b)–
(A) in paragraph (1), by striking “good faith
estimate of the number of targets of such orders;” and
inserting the following: “good faith estimate of–
“(A) the number of targets of such orders;
“(B) the number of targets of such orders who are
known to not be United States persons; and
“(C) the number of targets of such orders who are
known to be United States persons;”;
(B) in paragraph (2)–
(i) in the matter preceding subparagraph (A),
by inserting “, including pursuant to subsection
(f)(2) of such section,” after “section 702”;
(ii) by redesignating subparagraphs (A) and
(B) as subparagraphs (B) and (C), respectively;
(iii) by inserting before subparagraph (B), as
so redesignated, the following:
“(A) the number of targets of such orders;”;
(iv) in subparagraph (B), as so redesignated,
by striking “and” at the end; and
(v) by adding at the end the following:
“(D) the number of instances in which the Federal
Bureau of Investigation opened, under the Criminal
Investigative Division or any successor division, an
investigation of a United States person (who is not
considered a threat to national security) based wholly
or in part on an acquisition authorized under such
section;”;
(C) in paragraph (3)(A), by striking “orders; and”
and inserting the following: “orders, including–
“(i) the number of targets of such orders who
are known to not be United States persons; and
[[Page 132 STAT. 10]]
“(ii) the number of targets of such orders
who are known to be United States persons; and”;
(D) by redesignating paragraphs (4), (5), and (6) as
paragraphs (5), (6), and (7), respectively; and
(E) by inserting after paragraph (3) the following:
“(4) the number of criminal proceedings in which the United
States or a State or political subdivision thereof provided
notice pursuant to subsection (c) or (d) of section 106
(including with respect to information acquired from an
acquisition conducted under section 702) or subsection (d) or
(e) of section 305 of the intent of the government to enter into
evidence or otherwise use or disclose any information obtained
or derived from electronic surveillance, physical search, or an
acquisition conducted pursuant to this Act;”; and
(2) in subsection (d)–
(A) in paragraph (1), by striking “(4), or (5)”
and inserting “(5), or (6)”;
(B) in paragraph (2)(A)–
(i) by striking “Paragraphs (2)(A), (2)(B),
and (5)(C)” and inserting “Paragraphs (2)(B),
(2)(C), and (6)(C)”; and
(ii) by inserting before the period at the end
the following: “, except with respect to
information required under paragraph (2) relating
to orders issued under section 702(f)(2)”; and
(C) in paragraph (3)(A), in the matter preceding
clause (i), by striking “subsection (b)(2)(B)” and
inserting “subsection (b)(2)(C)”.
SEC. 103. CONGRESSIONAL REVIEW AND OVERSIGHT OF ABOUTS COLLECTION.
(a) In General.–Section 702(b) (50 U.S.C. 1881a(b)) is amended–
(1) in paragraph (4), by striking “and” at the end;
(2) by redesignating paragraph (5) as paragraph (6); and
(3) by inserting after paragraph (4) the following:
“(5) may not intentionally acquire communications that
contain a reference to, but are not to or from, a target of an
acquisition authorized under subsection (a), except as provided
under section 103(b) of the FISA Amendments Reauthorization Act
of 2017; and”.
(b) <<NOTE: 50 USC 1881a note.>> Congressional Review and Oversight
of Abouts Collection.–
(1) Definitions.–In this subsection:
(A) The term “abouts communication” means a
communication that contains a reference to, but is not
to or from, a target of an acquisition authorized under
section 702(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1881a(a)).
(B) The term “material breach” means significant
noncompliance with applicable law or an order of the
Foreign Intelligence Surveillance Court concerning any
acquisition of abouts communications.
(2) Submission to congress.–
(A) <<NOTE: Notice.>> Requirement.–Notwithstanding
any other provision of law, and except as provided in
paragraph (4), if
[[Page 132 STAT. 11]]
the Attorney General and the Director of National
Intelligence intend to implement the authorization of
the intentional acquisition of abouts communications,
before the first such implementation after the date of
enactment of this Act, the Attorney General and the
Director of National Intelligence shall submit to the
Committee on the Judiciary and the Select Committee on
Intelligence of the Senate and the Committee on the
Judiciary and the Permanent Select Committee on
Intelligence of the House of Representatives a written
notice of the intent to implement the authorization of
such an acquisition, and any supporting materials in
accordance with this subsection.
(B) <<NOTE: Effective date. Hearings. Briefings.>>
Congressional review period.–During the 30-day period
beginning on the date written notice is submitted under
subparagraph (A), the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate and the
Committee on the Judiciary and the Permanent Select
Committee on Intelligence of the House of
Representatives shall, as appropriate, hold hearings and
briefings and otherwise obtain information in order to
fully review the written notice.
(C) <<NOTE: Determination.>> Limitation on action
during congressional review period.–Notwithstanding any
other provision of law, and subject to paragraph (4),
unless the Attorney General and the Director of National
Intelligence make a determination pursuant to section
702(c)(2) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1881a(c)(2)), the Attorney General
and the Director of National Intelligence may not
implement the authorization of the intentional
acquisition of abouts communications before the end of
the period described in subparagraph (B).
(3) <<NOTE: Records.>> Written notice.–Written notice
under paragraph (2)(A) shall include the following:
(A) <<NOTE: Certification.>> A copy of any
certification submitted to the Foreign Intelligence
Surveillance Court pursuant to section 702 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1881a), or amendment thereto, authorizing the
intentional acquisition of abouts communications,
including all affidavits, procedures, exhibits, and
attachments submitted therewith.
(B) The decision, order, or opinion of the Foreign
Intelligence Surveillance Court approving such
certification, and any pleadings, applications, or
memoranda of law associated with such decision, order,
or opinion.
(C) A summary of the protections in place to detect
any material breach.
(D) Data or other results of modeling, simulation,
or auditing of sample data demonstrating that any
acquisition method involving the intentional acquisition
of abouts communications shall be conducted in
accordance with title VII of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881 et seq.), if
such data or other results exist at the time the written
notice is submitted and were provided to the Foreign
Intelligence Surveillance Court.
(E) Except as provided under paragraph (4), a
statement that no acquisition authorized under
subsection (a)
[[Page 132 STAT. 12]]
of such section 702 shall include the intentional
acquisition of an abouts communication until after the
end of the 30-day period described in paragraph (2)(B).
(4) Exception for emergency acquisition.–
(A) <<NOTE: Deadline.>> Notice of determination.–
If the Attorney General and the Director of National
Intelligence make a determination pursuant to section
702(c)(2) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1881a(c)(2)) with respect to the
intentional acquisition of abouts communications, the
Attorney General and the Director of National
Intelligence shall notify the Committee on the Judiciary
and the Select Committee on Intelligence of the Senate
and the Committee on the Judiciary and the Permanent
Select Committee on Intelligence of the House of
Representatives as soon as practicable, but not later
than 7 days after the determination is made.
(B) Implementation or continuation.–
(i) <<NOTE: Certification. Determination.>>
In general.–If the Foreign Intelligence
Surveillance Court approves a certification that
authorizes the intentional acquisition of abouts
communications before the end of the 30-day period
described in paragraph (2)(B), the Attorney
General and the Director of National Intelligence
may authorize the immediate implementation or
continuation of that certification if the Attorney
General and the Director of National Intelligence
jointly determine that exigent circumstances exist
such that without such immediate implementation or
continuation intelligence important to the
national security of the United States may be lost
or not timely acquired.
(ii) <<NOTE: Determination. Deadline.>>
Notice.–The Attorney General and the Director of
National Intelligence shall submit to the
Committee on the Judiciary and the Select
Committee on Intelligence of the Senate and the
Committee on the Judiciary and the Permanent
Select Committee on Intelligence of the House of
Representatives notification of a determination
pursuant to clause (i) as soon as practicable, but
not later than 3 days after the determination is
made.
(5) Reporting of material breach.–Subsection (m) of section
702 (50 U.S.C. 1881a), as redesignated by section 101, is
amended–
(A) in the heading by striking “and Reviews” and
inserting “Reviews, and Reporting”; and
(B) by adding at the end the following new
paragraph:
“(4) Reporting of material breach.–
“(A) In general.–The head of each element of the
intelligence community involved in the acquisition of
abouts communications shall fully and currently inform
the Committees on the Judiciary of the House of
Representatives and the Senate and the congressional
intelligence committees of a material breach.
“(B) Definitions.–In this paragraph:
“(i) The term `abouts communication’ means a
communication that contains a reference to, but is
not to or from, a target of an acquisition
authorized under subsection (a).
[[Page 132 STAT. 13]]
“(ii) The term `material breach’ means
significant noncompliance with applicable law or
an order of the Foreign Intelligence Surveillance
Court concerning any acquisition of abouts
communications.”.
(6) Appointment of amici curiae by foreign intelligence
surveillance court.–For purposes of section 103(i)(2)(A) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(i)(2)(A)), the Foreign Intelligence Surveillance Court
shall treat the first certification under section 702(h) of such
Act (50 U.S.C. 1881a(h)) or amendment thereto that authorizes
the acquisition of abouts communications as presenting a novel
or significant interpretation of the law, unless the court
determines otherwise.
SEC. 104. PUBLICATION OF MINIMIZATION PROCEDURES UNDER SECTION
702.
Section 702(e) (50 U.S.C. 1881a(e)) is amended by adding at the end
the following new paragraph:
“(3) <<NOTE: Consultation.>> Publication.–The Director of
National Intelligence, in consultation with the Attorney
General, shall–
“(A) conduct a declassification review of any
minimization procedures adopted or amended in accordance
with paragraph (1); and
“(B) consistent with such review, and not later
than 180 days after conducting such review, make such
minimization procedures publicly available to the
greatest extent practicable, which may be in redacted
form.”.
SEC. 105. SECTION 705 EMERGENCY PROVISION.
Section 705 (50 U.S.C. 1881d) is amended by adding at the end the
following:
“(c) Emergency Authorization.–
“(1) Concurrent authorization.–If the Attorney General
authorized the emergency employment of electronic surveillance
or a physical search pursuant to section 105 or 304, the
Attorney General may authorize, for the effective period of the
emergency authorization and subsequent order pursuant to section
105 or 304, without a separate order under section 703 or 704,
the targeting of a United States person subject to such
emergency employment for the purpose of acquiring foreign
intelligence information while such United States person is
reasonably believed to be located outside the United States.
“(2) Use of information.–If an application submitted to
the Court pursuant to section 104 or 303 is denied, or in any
other case in which the acquisition pursuant to paragraph (1) is
terminated and no order with respect to the target of the
acquisition is issued under section 105 or 304, all information
obtained or evidence derived from such acquisition shall be
handled in accordance with section 704(d)(4).”.
SEC. 106. COMPENSATION OF AMICI CURIAE AND TECHNICAL EXPERTS.
Subsection (i) of section 103 (50 U.S.C. 1803) is amended by adding
at the end the following:
“(11) Compensation.–Notwithstanding any other provision of
law, a court established under subsection (a) or (b) may
compensate an amicus curiae appointed under paragraph
[[Page 132 STAT. 14]]
(2) for assistance provided under such paragraph as the court
considers appropriate and at such rate as the court considers
appropriate.”.
SEC. 107. ADDITIONAL REPORTING REQUIREMENTS.
(a) Electronic Surveillance.–Section 107 (50 U.S.C. 1807) is
amended to read as follows:
“SEC. 107. REPORT OF ELECTRONIC SURVEILLANCE.
“(a) Annual Report.–In April of each year, the Attorney General
shall transmit to the Administrative Office of the United States Courts
and to the congressional intelligence committees and the Committees on
the Judiciary of the House of Representatives and the Senate a report
setting forth with respect to the preceding calendar year–
“(1) the total number of applications made for orders and
extensions of orders approving electronic surveillance under
this title;
“(2) the total number of such orders and extensions either
granted, modified, or denied; and
“(3) the total number of subjects targeted by electronic
surveillance conducted under an order or emergency authorization
under this title, rounded to the nearest 500, including the
number of such individuals who are United States persons,
reported to the nearest band of 500, starting with 0-499.
“(b) Form.–Each report under subsection (a) shall be submitted in
unclassified form, to the extent consistent with national security. Not
later than 7 days <<NOTE: Public information. Determination.>> after
the date on which the Attorney General submits each such report, the
Attorney General shall make the report publicly available, or, if the
Attorney General determines that the report cannot be made publicly
available consistent with national security, the Attorney General may
make publicly available an unclassified summary of the report or a
redacted version of the report.”.
(b) Pen Registers and Trap and Trace Devices.–Section 406 (50
U.S.C. 1846) is amended–
(1) in subsection (b)–
(A) in paragraph (4), by striking “; and” and
inserting a semicolon;
(B) in paragraph (5), by striking the period at the
end and inserting “; and”; and
(C) by adding at the end the following new
paragraph:
“(6) a good faith estimate of the total number of subjects
who were targeted by the installation and use of a pen register
or trap and trace device under an order or emergency
authorization issued under this title, rounded to the nearest
500, including–
“(A) the number of such subjects who are United
States persons, reported to the nearest band of 500,
starting with 0-499; and
“(B) of the number of United States persons
described in subparagraph (A), the number of persons
whose information acquired pursuant to such order was
reviewed or accessed by a Federal officer, employee, or
agent, reported to the nearest band of 500, starting
with 0-499.”; and
(2) by adding at the end the following new subsection:
“(c) Each report under subsection (b) shall be submitted in
unclassified form, to the extent consistent with national security.
[[Page 132 STAT. 15]]
Not later than 7 days <<NOTE: Deadline. Determination.>> after the date
on which the Attorney General submits such a report, the Attorney
General shall make the report publicly available, or, if the Attorney
General determines that the report cannot be made publicly available
consistent with national security, the Attorney General may make
publicly available an unclassified summary of the report or a redacted
version of the report.”.
SEC. 108. IMPROVEMENTS TO PRIVACY AND CIVIL LIBERTIES OVERSIGHT
BOARD.
(a) Appointment of Staff.–Subsection (j) of section 1061 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C.
2000ee(j)) is amended–
(1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively; and
(2) by inserting after paragraph (1) the following new
paragraph:
“(2) Appointment in absence of chairman.–If the position
of chairman of the Board is vacant, during the period of the
vacancy, the Board, at the direction of the unanimous vote of
the serving members of the Board, may exercise the authority of
the chairman under paragraph (1).”.
(b) Meetings.–Subsection (f) of such section (42 U.S.C. 2000ee(f))
is amended–
(1) by striking “The Board shall” and inserting “The
Board”;
(2) in paragraph (1) by striking “make its” and inserting
“shall make its”; and
(3) in paragraph (2)–
(A) by striking “hold public” and inserting
“shall hold public”; and
(B) by inserting before the period at the end the
following: “, but may, notwithstanding section 552b of
title 5, United States Code, meet or otherwise
communicate in any number to confer or deliberate in a
manner that is closed to the public”.
SEC. 109. PRIVACY AND CIVIL LIBERTIES OFFICERS.
Section 1062(a) of the Intelligence Reform and Terrorism Prevention
Act of 2004 (42 U.S.C. 2000ee-1(a)) is amended by inserting “, the
Director of the National Security Agency, the Director of the Federal
Bureau of Investigation” after “the Director of the Central
Intelligence Agency”.
SEC. 110. WHISTLEBLOWER PROTECTIONS FOR CONTRACTORS OF THE
INTELLIGENCE COMMUNITY.
(a) Prohibited Personnel Practices in the Intelligence Community.–
Section 1104 of the National Security Act of 1947 (50 U.S.C. 3234) is
amended–
(1) in subsection (a)–
(A) in paragraph (3), by inserting “or a contractor
employee” after “character)”; and
(B) by adding at the end the following new
paragraph:
“(4) <<NOTE: Definition.>> Contractor employee.–The term
`contractor employee’ means an employee of a contractor,
subcontractor, grantee, subgrantee, or personal services
contractor, of a covered intelligence community element.”;
(2) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively;
[[Page 132 STAT. 16]]
(3) by inserting after subsection (b) the following new
subsection (c):
“(c) Contractor Employees.–(1) Any employee of a contractor,
subcontractor, grantee, subgrantee, or personal services contractor, of
a covered intelligence community element who has authority to take,
direct others to take, recommend, or approve any personnel action, shall
not, with respect to such authority, take or fail to take a personnel
action with respect to any contractor employee as a reprisal for a
lawful disclosure of information by the contractor employee to the
Director of National Intelligence (or an employee designated by the
Director of National Intelligence for such purpose), the Inspector
General of the Intelligence Community, the head of the contracting
agency (or an employee designated by the head of that agency for such
purpose), the appropriate inspector general of the contracting agency, a
congressional intelligence committee, or a member of a congressional
intelligence committee, which the contractor employee reasonably
believes evidences–
“(A) a violation of any Federal law, rule, or regulation
(including with respect to evidence of another employee or
contractor employee accessing or sharing classified information
without authorization); or
“(B) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety.
“(2) A personnel action under paragraph (1) is prohibited even if
the action is undertaken at the request of an agency official, unless
the request takes the form of a nondiscretionary directive and is within
the authority of the agency official making the request.”;
(4) in subsection (b), by striking the heading and inserting
“Agency Employees.–”; and
(5) in subsection (e), as redesignated by paragraph (2), by
inserting “contractor employee,” after “any employee,”.
(b) <<NOTE: 5 USC 2303 note.>> Federal Bureau of Investigation.–
(1) In general.–Any employee of a contractor,
subcontractor, grantee, subgrantee, or personal services
contractor, of the Federal Bureau of Investigation who has
authority to take, direct others to take, recommend, or approve
any personnel action, shall not, with respect to such authority,
take or fail to take a personnel action with respect to a
contractor employee as a reprisal for a disclosure of
information–
(A) made–
(i) to a supervisor in the direct chain of
command of the contractor employee;
(ii) to the Inspector General;
(iii) to the Office of Professional
Responsibility of the Department of Justice;
(iv) to the Office of Professional
Responsibility of the Federal Bureau of
Investigation;
(v) to the Inspection Division of the Federal
Bureau of Investigation;
(vi) to the Office of Special Counsel; or
(vii) to an employee designated by any
officer, employee, office, or division described
in clauses (i) through (vii) for the purpose of
receiving such disclosures; and
[[Page 132 STAT. 17]]
(B) which the contractor employee reasonably
believes evidences–
(i) any violation of any law, rule, or
regulation (including with respect to evidence of
another employee or contractor employee accessing
or sharing classified information without
authorization); or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and
specific danger to public health or safety.
(2) Actions by request.–A personnel action under paragraph
(1) is prohibited even if the action is undertaken at the
request of an official of the Federal Bureau of Investigation,
unless the request takes the form of a nondiscretionary
directive and is within the authority of the official making the
request.
(3) Regulations.–The Attorney General shall prescribe
regulations to ensure that a personnel action described in
paragraph (1) shall not be taken against a contractor employee
of the Federal Bureau of Investigation as a reprisal for any
disclosure of information described in subparagraph (A) of such
paragraph.
(4) <<NOTE: President.>> Enforcement.–The President shall
provide for the enforcement of this subsection.
(5) Definitions.–In this subsection:
(A) The term “contractor employee” means an
employee of a contractor, subcontractor, grantee,
subgrantee, or personal services contractor, of the
Federal Bureau of Investigation.
(B) The term “personnel action” means any action
described in clauses (i) through (x) of section
2302(a)(2)(A) of title 5, United States Code, with
respect to a contractor employee.
(c) Retaliatory Revocation of Security Clearances and Access
Determinations.–Section 3001(j) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 3341(j)) is amended by
adding at the end the following new paragraph:
“(8) Inclusion of contractor employees.–In this
subsection, the term `employee’ includes an employee of a
contractor, subcontractor, grantee, subgrantee, or personal
services contractor, of an agency. With respect to such
employees, the term `employing agency’ shall be deemed to be the
contracting agency.”.
SEC. 111. <<NOTE: Deadline. Consultation.>> BRIEFING ON
NOTIFICATION REQUIREMENTS.
Not later than 180 days after the date of the enactment of this Act,
the Attorney General, in consultation with the Director of National
Intelligence, shall provide to the Committee on the Judiciary and the
Permanent Select Committee on Intelligence of the House of
Representatives and the Committee on the Judiciary and the Select
Committee on Intelligence of the Senate a briefing with respect to how
the Department of Justice interprets the requirements under sections
106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved
person under such sections of the use of information obtained or derived
from electronic surveillance, physical search, or the use of a pen
register or trap and trace device. The briefing shall focus on how the
Department interprets the phrase “obtained or derived from” in such
sections.
[[Page 132 STAT. 18]]
SEC. 112. INSPECTOR GENERAL REPORT ON QUERIES CONDUCTED BY FEDERAL
BUREAU OF INVESTIGATION.
(a) Report.–Not later than 1 year after the date on which the
Foreign Intelligence Surveillance Court first approves the querying
procedures adopted pursuant to section 702(f) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as added by
section 101, the Inspector General of the Department of Justice shall
submit to the Committee on the Judiciary and the Select Committee on
Intelligence of the Senate and the Committee on the Judiciary and the
Permanent Select Committee on Intelligence of the House of
Representatives a report containing a review by the Inspector General of
the interpretation of, and compliance with, such procedures by the
Federal Bureau of Investigation.
(b) Matters Included.–The report under subsection (a) shall
include, at a minimum, an assessment of the following:
(1) The interpretations by the Federal Bureau of
Investigation and the National Security Division of the
Department of Justice, respectively, relating to the querying
procedures adopted under subsection (f) of section 702 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1881a(f)), as added by section 101.
(2) The handling by the Federal Bureau of Investigation of
individuals whose citizenship status is unknown at the time of a
query conducted under such section 702.
(3) The practice of the Federal Bureau of Investigation with
respect to retaining records of queries conducted under such
section 702 for auditing purposes.
(4) The training or other processes of the Federal Bureau of
Investigation to ensure compliance with such querying
procedures.
(5) The implementation of such querying procedures with
respect to queries conducted when evaluating whether to open an
assessment or predicated investigation relating to the national
security of the United States.
(6) The scope of access by the criminal division of the
Federal Bureau of Investigation to information obtained pursuant
to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801 et seq.), including with respect to information acquired
under subsection (a) of such section 702 based on queries
conducted by the criminal division.
(7) The frequency and nature of the reviews conducted by the
National Security Division of the Department of Justice and the
Office of the Director of National Intelligence relating to the
compliance by the Federal Bureau of Investigation with such
querying procedures.
(8) Any impediments, including operational, technical, or
policy impediments, for the Federal Bureau of Investigation to
count–
(A) the total number of queries where the Federal
Bureau of Investigation subsequently accessed
information acquired under subsection (a) of such
section 702;
(B) the total number of such queries that used known
United States person identifiers; and
(C) the total number of queries for which the
Federal Bureau of Investigation received an order of the
Foreign
[[Page 132 STAT. 19]]
Intelligence Surveillance Court pursuant to subsection
(f)(2) of such section 702.
(c) Form.–The report under subsection (a) shall be submitted in
unclassified form to the extent consistent with national security, but
may include a classified annex.
TITLE II–EXTENSION OF AUTHORITIES, INCREASED PENALTIES, REPORTS, AND
OTHER MATTERS
SEC. 201. EXTENSION OF TITLE VII OF FISA; EFFECTIVE DATES.
(a) Extension.–Section 403(b) of the FISA Amendments Act of 2008
(Public Law 110-261; 122 Stat. 2474) is amended–
(1) <<NOTE: 50 USC 1881 and note, 1881a-1881g.>> in
paragraph (1)–
(A) by striking “December 31, 2017” and inserting
“December 31, 2023”; and
(B) by inserting “and by the FISA Amendments
Reauthorization Act of 2017” after “section 101(a)”;
and
(2) <<NOTE: 50 USC 2511 note.>> in paragraph (2) in the
matter preceding subparagraph (A), by striking “December 31,
2017” and inserting “December 31, 2023”.
(b) Conforming Amendments.–Section 404(b) of the FISA Amendments
Act of 2008 (Public Law 110-261; 122 Stat. 2476), as amended by section
101, <<NOTE: 50 USC 1801 note.>> is further amended–
(1) in paragraph (1)–
(A) in the heading, by striking “December 31,
2017” and inserting “December 31, 2023”; and
(B) by inserting “and by the FISA Amendments
Reauthorization Act of 2017” after “section 101(a)”;
(2) in paragraph (2), by inserting “and by the FISA
Amendments Reauthorization Act of 2017” after “section
101(a)”; and
(3) in paragraph (4)–
(A) by inserting “and amended by the FISA
Amendments Reauthorization Act of 2017” after “as
added by section 101(a)” both places it appears; and
(B) by inserting “and by the FISA Amendments
Reauthorization Act of 2017” after “as amended by
section 101(a)” both places it appears.
(c) <<NOTE: 50 USC 1881 note.>> Effective Date of Amendments to
FAA.–The amendments made to the FISA Amendments Act of 2008 (Public Law
110-261) by this section shall take effect on December 31, 2017.
SEC. 202. INCREASED PENALTY FOR UNAUTHORIZED REMOVAL AND RETENTION
OF CLASSIFIED DOCUMENTS OR MATERIAL.
Section 1924(a) of title 18, United States Code, is amended by
striking “one year” and inserting “five years”.
SEC. 203. REPORT ON CHALLENGES TO THE EFFECTIVENESS OF FOREIGN
INTELLIGENCE SURVEILLANCE.
(a) <<NOTE: Coordination.>> Report.–Not later than 270 days after
the date of the enactment of this Act, the Attorney General, in
coordination with the Director of National Intelligence, shall submit to
the Committee on the Judiciary and the Permanent Select Committee on
Intelligence of the House of Representatives and the Committee on the
Judiciary and the Select Committee on Intelligence of the Senate
[[Page 132 STAT. 20]]
a report on current and future challenges to the effectiveness of the
foreign intelligence surveillance activities of the United States
authorized under the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).
(b) <<NOTE: Recommenda- tions.>> Matters Included.–The report
under subsection (a) shall include, at a minimum, the following:
(1) A discussion of any trends that currently challenge the
effectiveness of the foreign intelligence surveillance activities of the
United States, or could foreseeably challenge such activities during the
decade following the date of the report, including with respect to–
(A) the extraordinary and surging volume of data
occurring worldwide;
(B) the use of encryption;
(C) changes to worldwide telecommunications patterns
or infrastructure;
(D) technical obstacles in determining the location
of data or persons;
(E) the increasing complexity of the legal regime,
including regarding requests for data in the custody of
foreign governments;
(F) the current and future ability of the United
States to obtain, on a compulsory or voluntary basis,
assistance from telecommunications providers or other
entities; and
(G) any other matters the Attorney General and the
Director of National Intelligence determine appropriate.
(2) Recommendations for changes, including, as appropriate,
fundamental changes, to the foreign intelligence surveillance
activities of the United States to address the challenges
identified under paragraph (1) and to ensure the long-term
effectiveness of such activities.
(3) Recommendations for any changes to the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
that the Attorney General and the Director of National
Intelligence determine necessary to address the challenges
identified under paragraph (1).
(c) Form.–The report under subsection (a) may be submitted in
classified or unclassified form.
SEC. 204. COMPTROLLER GENERAL STUDY ON THE CLASSIFICATION SYSTEM
AND PROTECTION OF CLASSIFIED INFORMATION.
(a) Study.–The Comptroller General of the United States shall
conduct a study of the classification system of the United States and
the methods by which the intelligence community (as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4))) protects
classified information.
(b) Matters Included.–The study under subsection (a) shall address
the following:
(1) Whether sensitive information is properly classified.
(2) The effect of modern technology on the storage and
protection of classified information, including with respect
to–
(A) using cloud storage for classified information;
and
(B) any technological means to prevent or detect
unauthorized access to such information.
(3) Any ways to improve the classification system of the
United States, including with respect to changing the levels
[[Page 132 STAT. 21]]
of classification used in such system and to reduce
overclassification.
(4) How to improve the authorized sharing of classified
information, including with respect to sensitive compartmented
information.
(5) The value of polygraph tests in determining who is
authorized to access classified information and in investigating
unauthorized disclosures of classified information.
(6) Whether each element of the intelligence community–
(A) applies uniform standards in determining who is
authorized to access classified information; and
(B) provides proper training with respect to the
handling of classified information and the avoidance of
overclassification.
(c) Report.–Not later than 180 days after the date of the enactment
of this Act, the Comptroller General shall submit to the Committee on
the Judiciary and the Permanent Select Committee on Intelligence of the
House of Representatives and the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate a report containing the
study under subsection (a).
(d) Form.–The report under subsection (c) shall be submitted in
unclassified form, but may include a classified annex.
SEC. 205. TECHNICAL AMENDMENTS AND AMENDMENTS TO IMPROVE
PROCEDURES OF THE FOREIGN INTELLIGENCE
SURVEILLANCE COURT OF REVIEW.
(a) Technical Amendments.–The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended as follows:
(1) In section 103(b) (50 U.S.C. 1803(b)), by striking
“designate as the” and inserting “designated as the”.
(2) In section 302(a)(1)(A)(iii) (50 U.S.C.
1822(a)(1)(A)(iii)), by striking “paragraphs (1) through (4)”
and inserting “subparagraphs (A) through (D)”.
(3) In section 406(b) (50 U.S.C. 1846(b)), by striking “and
to the Committees on the Judiciary of the House of
Representatives and the Senate”.
(4) In section 604(a) (50 U.S.C. 1874(a))–
(A) in paragraph (1)(D), by striking “contents”
and inserting “contents,”; and
(B) in paragraph (3), by striking “comply in the
into” and inserting “comply into”.
(5) In section 701 (50 U.S.C. 1881)–
(A) in subsection (a), by striking “The terms” and
inserting “In this title, the terms”; and
(B) in subsection (b)–
(i) by inserting “In this title:” after the
subsection heading; and
(ii) in paragraph (5), by striking “(50
U.S.C. 401a(4))” and inserting “(50 U.S.C.
3003(4))”.
(6) In section 702(h)(2)(A)(i) (50 U.S.C.
1881a(h)(2)(A)(i)), as redesignated by section 101, by inserting
“targeting” before “procedures in place”.
(7) In section 801(7) (50 U.S.C. 1885(7)), by striking “(50
U.S.C. 401a(4))” and inserting “(50 U.S.C. 3003(4))”.
[[Page 132 STAT. 22]]
(b) Court-related Amendments.–The Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.) is further amended as follows:
(1) In section 103 (50 U.S.C. 1803)–
(A) in subsection (b), by striking “immediately”;
and
(B) in subsection (h), by striking “the court
established under subsection (a)” and inserting “a
court established under this section”.
(2) In section 105(d) (50 U.S.C. 1805(d)), by adding at the
end the following new paragraph:
“(4) A denial of the application made under section 104 may be
reviewed as provided in section 103.”.
(3) In section 302(d) (50 U.S.C. 1822(d)), by striking
“immediately”.
(4) In section 402(d) (50 U.S.C. 1842(d)), by adding at the
end the following new paragraph:
“(3) A denial of the application made under this subsection may be
reviewed as provided in section 103.”.
(5) In section 403(c) (50 U.S.C. 1843(c)), by adding at the
end the following new paragraph:
“(3) A denial of the application made under subsection (a)(2) may
be reviewed as provided in section 103.”.
(6) In section 501(c) (50 U.S.C. 1861(c)), by adding at the
end the following new paragraph:
“(4) A denial of the application made under this subsection
may be reviewed as provided in section 103.”.
SEC. 206. <<NOTE: 50 USC 1801 note.>> SEVERABILITY.
If any provision of this Act, any amendment made by this Act, or the
application thereof to any person or circumstances is held invalid, the
validity of the remainder of the Act, of any such amendments, and of the
application of such provisions to other persons and circumstances shall
not be affected thereby.
Approved January 19, 2018.
LEGISLATIVE HISTORY–S. 139:
—————————————————————————
CONGRESSIONAL RECORD:
Vol. 163 (2017):
May 16, considered and passed
Senate.
Vol. 164 (2018):
Jan. 11, considered and passed
House, amended. Considered in
Senate.
Jan. 16-18, Senate considered and
concurred in House amendment.
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2018):
Jan. 19, Presidential statement.
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