50 USC CHAPTER 36, SUBCHAPTER II: PHYSICAL SEARCHES

From Title 50—WAR AND NATIONAL DEFENSECHAPTER 36—FOREIGN INTELLIGENCE SURVEILLANCE

SUBCHAPTER II—PHYSICAL SEARCHES

§1821. Definitions

As used in this subchapter:

(1) The terms "foreign power", "agent of a foreign power", "international terrorism", "sabotage", "foreign intelligence information", "Attorney General", "United States person", "United States", "person", "weapon of mass destruction", and "State" shall have the same meanings as in section 1801 of this title, except as specifically provided by this subchapter.

(2) "Aggrieved person" means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.

(3) "Foreign Intelligence Surveillance Court" means the court established by section 1803(a) of this title.

(4) "Minimization procedures" with respect to physical search, means—

(A) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 1801(e)(1) of this title, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand such foreign intelligence information or assess its importance;

(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(D) notwithstanding subparagraphs (A), (B), and (C), with respect to any physical search approved pursuant to section 1822(a) of this title, procedures that require that no information, material, or property of a United States person shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1824 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

(5) "Physical search" means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) "electronic surveillance", as defined in section 1801(f) of this title, or (B) the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 1801(f) of this title.

(Pub. L. 95–511, title III, §301, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3443; amended Pub. L. 107–108, title III, §314(a)(3), Dec. 28, 2001, 115 Stat. 1402; Pub. L. 110–261, title I, §110(c)(2), July 10, 2008, 122 Stat. 2467; Pub. L. 111–259, title VIII, §801(4), Oct. 7, 2010, 124 Stat. 2746.)

Editorial Notes

Prior Provisions

A prior section 301 of Pub. L. 95–511 was renumbered section 701 and was set out as a note under section 1801 of this title, prior to repeal by Pub. L. 110–261.

Amendments

2010—Par. (1). Pub. L. 111–259 substituted " 'United States', 'person', 'weapon of mass destruction', and 'State' " for " 'United States', 'person', 'weapon of mass destruction', and 'State' ".

2008—Par. (1). Pub. L. 110–261 which directed the insertion of "weapon of mass destruction," after "person,", was executed by making the insertion after " 'person'," to reflect the probable intent of Congress.

2001—Par. (4)(D). Pub. L. 107–108 substituted "72 hours" for "24 hours".

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

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

Effective Date

Pub. L. 103–359, title VIII, §807(c), Oct. 14, 1994, 108 Stat. 3453, provided that: "The amendments made by subsections (a) and (b) [enacting this subchapter and amending provisions set out as a note under section 1801 of this title] shall take effect 90 days after the date of enactment of this Act [Oct. 14, 1994], except that any physical search approved by the Attorney General of the United States to gather foreign intelligence information shall not be deemed unlawful for failure to follow the procedures of title III of the Foreign Intelligence Surveillance Act of 1978 [this subchapter] (as added by this Act), if that search is conducted within 180 days after the date of enactment of this Act pursuant to regulations issued by the Attorney General, which were in the possession of the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives before the date of enactment of this Act."

§1822. Authorization of physical searches for foreign intelligence purposes

(a) Presidential authorization

(1) Notwithstanding any other provision of law, the President, acting through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if—

(A) the Attorney General certifies in writing under oath that—

(i) the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers (as defined in section 1801(a)(1), (2), or (3) of this title);

(ii) there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person; and

(iii) the proposed minimization procedures with respect to such physical search meet the definition of minimization procedures under subparagraphs (A) through (D) of section 1821(4) of this title; and

(B) the Attorney General reports such minimization procedures and any changes thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate at least 30 days before their effective date, unless the Attorney General determines that immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2) A physical search authorized by this subsection may be conducted only in accordance with the certification and minimization procedures adopted by the Attorney General. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 1826 of this title.

(3) The Attorney General shall immediately transmit under seal to the Foreign Intelligence Surveillance Court a copy of the certification. Such certification shall be maintained under security measures established by the Chief Justice of the United States 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 physical search is made under section 1821(4) of this title and section 1823 of this title; or

(B) the certification is necessary to determine the legality of the physical search under section 1825(g) of this title.

(4)(A) With respect to physical searches authorized by this subsection, the Attorney General may direct a specified landlord, custodian, or other specified person to—

(i) furnish all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search; and

(ii) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain.

(B) The Government shall compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid.

(b) Application for order; authorization

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 Foreign Intelligence Surveillance Court. Notwithstanding any other provision of law, a judge of the court to whom application is made may grant an order in accordance with section 1824 of this title approving a physical search in the United States of the premises, property, information, or material of a foreign power or an agent of a foreign power for the purpose of collecting foreign intelligence information.

(c) Jurisdiction of Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court shall have jurisdiction to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States under the procedures set forth in this subchapter, except that no judge (except when sitting en banc) shall hear the same application which has been denied previously by another judge designated under section 1803(a) of this title. If any judge so designated denies an application for an order authorizing a physical search under this subchapter, such judge shall provide immediately for the record a written statement of each reason for such decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established under section 1803(b) of this title.

(d) Court of review; record; transmittal to Supreme Court

The court of review established under section 1803(b) of this title shall have jurisdiction to review the denial of any application made under this subchapter. If such court determines that the application was properly denied, the court shall provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.

(e) Expeditious conduct of proceedings; security measures for maintenance of records

Judicial proceedings under this subchapter shall be concluded as expeditiously as possible. The record of proceedings under this subchapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice of the United States in consultation with the Attorney General and the Director of National Intelligence.

(Pub. L. 95–511, title III, §302, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3444; amended Pub. L. 108–458, title I, §1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 110–261, title I, §109(b)(2)(B), July 10, 2008, 122 Stat. 2465; Pub. L. 111–259, title VIII, §806(a)(2), Oct. 7, 2010, 124 Stat. 2748; Pub. L. 115–118, title II, §205(a)(2), (b)(3), Jan. 19, 2018, 132 Stat. 21, 22.)

Editorial Notes

Amendments

2018—Subsec. (a)(1)(A)(iii). Pub. L. 115–118, §205(a)(2), substituted "subparagraphs (A) through (D)" for "paragraphs (1) through (4)".

Subsec. (d). Pub. L. 115–118, §205(b)(3), struck out "immediately" after "the court shall".

2010—Subsecs. (a)(3), (4)(A)(ii), (e). Pub. L. 111–259 made technical amendment to directory language of Pub. L. 108–458. See 2004 Amendment note below.

2008—Subsec. (c). Pub. L. 110–261 inserted "(except when sitting en banc)" after "except that no judge".

2004—Subsecs. (a)(3), (4)(A)(ii), (e). Pub. L. 108–458, as amended by Pub. L. 111–259, substituted "Director of National Intelligence" for "Director of Central Intelligence".

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Effective Date of 2004 Amendment

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

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

Effective Date

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

Executive Documents

Ex. Ord. No. 12949. Foreign Intelligence Physical Searches

Ex. Ord. No. 12949, Feb. 9, 1995, 60 F.R. 8169, as amended by Ex. Ord. No. 13383, §2, July 15, 2005, 70 F.R. 41933; Ex. Ord. No. 13475, §2, Oct. 7, 2008, 73 F.R. 60095, provided:

By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801, et seq.), as amended by Public Law 103–359 [50 U.S.C. 1822, 1823], and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.

Sec. 3. Pursuant to section 303(a)(6) of the Act, 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 303(a)(6) of the Act in support of applications to conduct physical searches:

(a) Secretary of State;

(b) Secretary of Defense;

[(c)] Director of National Intelligence;

(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; and

(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, by and 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.

§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) 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 section 1801(b)(2)(B) of this title), that a violation of the criminal statutes of the United States as referred to in section 1801(b)(2)(B) of this title 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;

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

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

(F) 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 section 527 of title 26), 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) 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) otherwise raise doubts with respect to the findings required under section 1824(a) of this title.

(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

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

(d) Personal review by Attorney General

(1)(A) 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 section 1801(b)(2) of this title.

(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, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3446; amended Pub. L. 106–567, title VI, §603(a), Dec. 27, 2000, 114 Stat. 2852; Pub. L. 107–56, title II, §218, Oct. 26, 2001, 115 Stat. 291; Pub. L. 108–458, title I, §1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 110–261, title I, §107(a), July 10, 2008, 122 Stat. 2462; Pub. L. 111–259, title VIII, §806(a)(2), Oct. 7, 2010, 124 Stat. 2748; Pub. L. 118–49, §§6(a)(2), (b)(2), (c)(2), (e)(2), (f)(2), 10(a)(2), (b)(2), Apr. 20, 2024, 138 Stat. 870–873, 875, 877.)

Editorial Notes

Amendments

2024—Subsec. (a)(3). Pub. L. 118–49, §6(a)(2), substituted "a sworn statement of" for "a statement of".

Subsec. (a)(3)(A). Pub. L. 118–49, §6(f)(2), 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 section 1801(b)(2)(B) of this title), that a violation of the criminal statutes of the United States as referred to in section 1801(b)(2)(B) of this title has occurred or is about to occur".

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

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

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

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

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

2010—Subsec. (d)(1)(A). Pub. L. 111–259 made technical amendment to directory language of Pub. L. 108–458. See 2004 Amendment note below.

2008—Subsec. (a)(2). Pub. L. 110–261, §107(a)(1)(A)–(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;".

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

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

Subsec. (a)(6). Pub. L. 110–261, §107(a)(1)(B), (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).

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

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

2004—Subsec. (d)(1)(A). Pub. L. 108–458, as amended by Pub. L. 111–259, substituted "Director of National Intelligence" for "Director of Central Intelligence".

2001—Subsec. (a)(7)(B). Pub. L. 107–56 substituted "a significant purpose" for "the purpose".

2000—Subsec. (d). Pub. L. 106–567 added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2024 Amendment

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

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

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

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

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

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

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

Effective Date of 2008 Amendment

Effective Date of 2004 Amendment

Effective Date

Executive Documents

Officials Designated To Make Certifications

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

§1824. Issuance of order

(a) Necessary findings

Upon an application made pursuant to section 1823 of this title, the judge shall enter an ex parte order as requested or as modified approving the physical search if the judge finds that—

(1) the application has been made by a Federal officer and approved by the Attorney General;

(2) on the basis of the facts submitted by the applicant there is probable cause to believe that—

(A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and

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

(3) the proposed minimization procedures meet the definition of minimization contained in this subchapter; and

(4) the application which has been filed contains all statements and certifications required by section 1823 of this title, and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1823(a)(6)(E) of this title and any other information furnished under section 1823(c) of this title.

(b) Determination of probable cause

In determining whether or not probable cause exists for purposes of an order under subsection (a)(2), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.

(c) Specifications and directions of orders

An order approving a physical search under this section shall—

(1) specify—

(A) the identity, if known, or a description of the target of the physical search;

(B) the nature and location of each of the premises or property to be searched;

(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and

(E) the period of time during which physical searches are approved; and

(2) direct—

(A) that the minimization procedures be followed;

(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search;

(C) that such landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain;

(D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and

(E) that the Federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.

(d) Duration of order; extensions; assessment of compliance

(1) An order issued under this section may approve a physical search for the period necessary to achieve its purpose, or for 90 days, whichever is less, except that (A) an order under this section shall approve a physical search targeted against a foreign power for the period specified in the application or for one year, whichever is less, and (B) an order under this section for a physical search targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for one year, whichever is less.

(2) At or before the end of the period of time for which a physical search is approved by an order or an extension, or at any time after a physical search is carried out, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.

(e) Emergency orders

(1) Notwithstanding any other provision of this subchapter, the Attorney General may authorize the emergency employment of a physical search if the Attorney General—

(A) reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;

(B) reasonably determines that the factual basis for issuance of an order under this subchapter to approve such physical search exists;

(C) informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and

(D) makes an application in accordance with this subchapter to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.

(2) If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.

(3) In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4) A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.

(5) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such physical search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

(6) The Attorney General shall assess compliance with the requirements of paragraph (5).

(f) Retention of applications and orders

Applications made and orders granted under this subchapter shall be retained for a period of at least 10 years from the date of the application.

(Pub. L. 95–511, title III, §304, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3447; amended Pub. L. 106–567, title VI, §603(b), Dec. 27, 2000, 114 Stat. 2853; Pub. L. 107–56, title II, §207(a)(2), (b)(2), Oct. 26, 2001, 115 Stat. 282; Pub. L. 107–108, title III, §314(a)(4), Dec. 28, 2001, 115 Stat. 1402; Pub. L. 108–458, title I, §1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 109–177, title I, §105(b), Mar. 9, 2006, 120 Stat. 195; Pub. L. 110–261, title I, §§107(b), (c)(1), 110(c)(3), July 10, 2008, 122 Stat. 2463, 2464, 2467; Pub. L. 111–259, title VIII, §§801(5), 806(a)(2), Oct. 7, 2010, 124 Stat. 2746, 2748; Pub. L. 118–49, §6(g)(2), Apr. 20, 2024, 138 Stat. 873.)

Editorial Notes

Amendments

2024—Subsec. (d)(1)(A). Pub. L. 118–49, §6(g)(2)(A)(i), substituted "against a foreign power" for "against a foreign power, as defined in paragraph (1), (2), or (3) of section 1801(a) of this title,".

Subsec. (d)(1)(B). Pub. L. 118–49, §6(g)(2)(A)(ii), substituted "one year" for "120 days".

Subsec. (d)(2), (3). Pub. L. 118–49, §6(g)(2)(B), (C), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: "Extensions of an order issued under this subchapter may be granted on the same basis as the original order upon an application for an extension and new findings made in the same manner as required for the original order, except that an extension of an order under this chapter for a physical search targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section 1801(a) of this title, or against a foreign power, as defined in section 1801(a)(4) of this title, that is not a United States person, or against an agent of a foreign power who is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no property of any individual United States person will be acquired during the period."

2010—Subsec. (b). Pub. L. 111–259, §801(5), substituted "subsection (a)(2)" for "subsection (a)(3)".

Subsec. (c)(2)(C). Pub. L. 111–259, §806(a)(2), made technical amendment to directory language of Pub. L. 108–458. See 2004 Amendment note below.

2008—Subsec. (a). Pub. L. 110–261, §107(b)(1), (c)(1), redesignated pars. (2) to (5) as (1) to (4), respectively, inserted "or is about to be" before "owned" in par. (2)(B), substituted "1823(a)(6)(E)" for "1823(a)(7)(E)" in par. (4), and struck out former par. (1) which read as follows: "the President has authorized the Attorney General to approve applications for physical searches for foreign intelligence purposes;".

Subsec. (d)(2). Pub. L. 110–261, §110(c)(3), substituted "paragraph (5), (6), or (7) of section 1801(a)" for "section 1801(a)(5) or (6)".

Subsec. (e). Pub. L. 110–261, §107(b)(2), amended subsec. (e) generally. Prior to amendment, subsec. (e) related to the power of the Attorney General to authorize the emergency employment of a physical search and required an application be made to a judge within 72 hours after the authorization.

2006—Subsec. (d)(1)(B), (2). Pub. L. 109–177 substituted "who is not a United States person" for "as defined in section 1801(b)(1)(A) of this title".

2004—Subsec. (c)(2)(C). Pub. L. 108–458, as amended by Pub. L. 111–259, §806(a)(2), substituted "Director of National Intelligence" for "Director of Central Intelligence".

2001—Subsec. (d)(1). Pub. L. 107–56, §207(a)(2), substituted "90 days," for "forty-five days," and inserted "(A)" after "except that" and ", and (B) an order under this section for a physical search targeted against an agent of a foreign power as defined in section 1801(b)(1)(A) of this title may be for the period specified in the application or for 120 days, whichever is less" before period at end.

Subsec. (d)(2). Pub. L. 107–56, §207(b)(2), inserted "or against an agent of a foreign power as defined in section 1801(b)(1)(A) of this title," after "not a United States person,".

Subsec. (e)(1)(A)(ii), (3)(C). Pub. L. 107–108 substituted "72 hours" for "24 hours".

2000—Subsecs. (b) to (f). Pub. L. 106–567 added subsec. (b) and redesignated former subsecs. (b) to (e) as (c) to (f), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Effective Date of 2004 Amendment

Effective Date

§1825. Use of information

(a) Compliance with minimization procedures; lawful purposes

Information acquired from a physical search conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No information acquired from a physical search pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.

(b) Notice of search and identification of property seized, altered, or reproduced

Where a physical search authorized and conducted pursuant to section 1824 of this title involves the residence of a United States person, and, at any time after the search the Attorney General determines there is no national security interest in continuing to maintain the secrecy of the search, the Attorney General shall provide notice to the United States person whose residence was searched of the fact of the search conducted pursuant to this chapter and shall identify any property of such person seized, altered, or reproduced during such search.

(c) Statement for disclosure

No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.

(d) Notification by United States

Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from a physical search pursuant to the authority of this subchapter, the United States shall, prior to the trial, hearing, or the other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.

(e) Notification by States or political subdivisions

Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof against an aggrieved person any information obtained or derived from a physical search pursuant to the authority of this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.

(f) Motion to suppress

(1) Any person against whom evidence obtained or derived from a physical search to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such search on the grounds that—

(A) the information was unlawfully acquired; or

(B) the physical search was not made in conformity with an order of authorization or approval.

(2) Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.

(g) In camera and ex parte review by district court

Whenever a court or other authority is notified pursuant to subsection (d) or (e), or whenever a motion is made pursuant to subsection (f), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to a physical search authorized by this subchapter or to discover, obtain, or suppress evidence or information obtained or derived from a physical search authorized by this subchapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other provision of law, if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the physical search, or may require the Attorney General to provide to the aggrieved person a summary of such materials, only where such disclosure is necessary to make an accurate determination of the legality of the physical search.

(h) Suppression of evidence; denial of motion

If the United States district court pursuant to subsection (g) determines that the physical search was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the physical search was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.

(i) Finality of orders

Orders granting motions or requests under subsection (h), decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States Court of Appeals or the Supreme Court.

(j) Notification of emergency execution of physical search; contents; postponement, suspension, or elimination

(1) If an emergency execution of a physical search is authorized under section 1824(d) ¹ of this title and a subsequent order approving the search is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to the search as the judge may determine in his discretion it is in the interests of justice to serve, notice of—

(A) the fact of the application;

(B) the period of the search; and

(2) On an ex parte showing of good cause to the judge, the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed 90 days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.

(k) Coordination with law enforcement on national security matters

(1) Federal officers who conduct physical searches to acquire foreign intelligence information under this subchapter may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against—

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.

(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 1823(a)(6) of this title or the entry of an order under section 1824 of this title.

(Pub. L. 95–511, title III, §305, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3449; amended Pub. L. 107–56, title V, §504(b), Oct. 26, 2001, 115 Stat. 364; Pub. L. 107–296, title VIII, §899, Nov. 25, 2002, 116 Stat. 2258; Pub. L. 110–261, title I, §§107(c)(2), 110(b)(2), July 10, 2008, 122 Stat. 2464, 2466; Pub. L. 117–347, title III, §323(a)(1)(A), Jan. 5, 2023, 136 Stat. 6206.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (b), was in the original "this Act", meaning Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Section 1824(d) of this title, referred to in subsec. (j)(1), was redesignated section 1824(e) of this title by Pub. L. 106–567, title VI, §603(b)(1), Dec. 27, 2000, 114 Stat. 2853.

Amendments

2023—Subsec. (k)(1). Pub. L. 117–347, §323(a)(1)(A), repealed Pub. L. 107–296, §899. See 2002 Amendment note below.

2008—Subsec. (k)(1)(B). Pub. L. 110–261, §110(b)(2), substituted "sabotage, international terrorism, or the international proliferation of weapons of mass destruction" for "sabotage or international terrorism".

Subsec. (k)(2). Pub. L. 110–261, §107(c)(2), substituted "1823(a)(6)" for "1823(a)(7)".

2002—Subsec. (k)(1). Pub. L. 107–296, §899, which inserted, in introductory provisions, "or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision)" after "law enforcement officers", was repealed by Pub. L. 117–347, §323(a)(1)(A). Repeal to have no effect on amendment by Pub. L. 107–296, see Construction of 2023 Amendment note set out under section 2517 of Title 18, Crimes and Criminal Procedure.

2001—Subsec. (k). Pub. L. 107–56 added subsec. (k).

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective Date

¹ See References in Text note below.

§1826. Congressional oversight

On a semiannual basis the Attorney General shall fully inform the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate concerning all physical searches conducted pursuant to this subchapter. On a semiannual basis the Attorney General shall also provide to those committees a report setting forth with respect to the preceding six-month period—

(1) the total number of applications made for orders approving physical searches under this subchapter;

(2) the total number of such orders either granted, modified, or denied;

(3) the number of physical searches which involved searches of the residences, offices, or personal property of United States persons, and the number of occasions, if any, where the Attorney General provided notice pursuant to section 1825(b) of this title; and

(4) the total number of emergency physical searches authorized by the Attorney General under section 1824(e) of this title and the total number of subsequent orders approving or denying such physical searches.

(Pub. L. 95–511, title III, §306, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3451; amended Pub. L. 109–177, title I, §109(a), Mar. 9, 2006, 120 Stat. 204; Pub. L. 114–23, title VI, §605(b), June 2, 2015, 129 Stat. 298.)

Editorial Notes

Amendments

2015—Pub. L. 114–23, in introductory provisions, substituted "Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate" for "Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the Senate," and struck out "and the Committee on the Judiciary of the House of Representatives" after "those committees".

2006—Pub. L. 109–177, §109(a)(1), (2), in introductory provisions, inserted ", and the Committee on the Judiciary of the Senate," after "Select Committee on Intelligence of the Senate" and substituted "and the Committee on the Judiciary of the House of Representatives" for "and the Committees on the Judiciary of the House of Representatives and the Senate".

Par. (4). Pub. L. 109–177, §109(a)(3)–(5), added par. (4).

Statutory Notes and Related Subsidiaries

Effective Date

§1827. Penalties

(a) Prohibited activities

A person is guilty of an offense if he intentionally—

(1) under color of law for the purpose of obtaining foreign intelligence information, executes a physical search within the United States except as authorized by statute; or

(2) discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute, for the purpose of obtaining intelligence information.

(b) Defense

It is a defense to a prosecution under subsection (a) that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the physical search was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.

(c) Fine or imprisonment

An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.

(d) Federal jurisdiction

There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

(Pub. L. 95–511, title III, §307, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3452.)

Statutory Notes and Related Subsidiaries

Effective Date

§1828. Civil liability

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A), respectively, of this title, whose premises, property, information, or material has been subjected to a physical search within the United States or about whom information obtained by such a physical search has been disclosed or used in violation of section 1827 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—

(1) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;

(2) punitive damages; and

(3) reasonable attorney's fees and other investigative and litigation costs reasonably incurred.

(Pub. L. 95–511, title III, §308, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3452.)

Statutory Notes and Related Subsidiaries

Effective Date

§1829. Authorization during time of war

Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.

(Pub. L. 95–511, title III, §309, as added Pub. L. 103–359, title VIII, §807(a)(3), Oct. 14, 1994, 108 Stat. 3452.)