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U.S. Code as of:
01/19/04
Section 1805. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1804 of this title,
the judge shall enter an ex parte order as requested or as modified
approving the electronic surveillance if he finds that -
(1) the President has authorized the Attorney General to
approve applications for electronic surveillance for foreign
intelligence information;
(2) the application has been made by a Federal officer and
approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there
is probable cause to believe that -
(A) the target of the electronic surveillance is a foreign
power or an agent of a foreign power: Provided, That no United
States person may be considered a foreign power or 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) each of the facilities or places at which the electronic
surveillance is directed is being used, or is about to be used,
by a foreign power or an agent of a foreign power;
(4) the proposed minimization procedures meet the definition of
minimization procedures under section 1804(h) of this title; and
(5) the application which has been filed contains all
statements and certifications required by section 1804 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 1804(a)(7)(E) of this
title and any other information furnished under section 1804(d)
of this title.
(b) Determination of probable cause
In determining whether or not probable cause exists for purposes
of an order under subsection (a)(3) of this section, 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 an electronic surveillance under this section
shall -
(1) specify -
(A) the identity, if known, or a description of the target of
the electronic surveillance;
(B) the nature and location of each of the facilities or
places at which the electronic surveillance will be directed,
if known;
(C) the type of information sought to be acquired and the
type of communications or activities to be subjected to the
surveillance;
(D) the means by which the electronic surveillance will be
effected and whether physical entry will be used to effect the
surveillance;
(E) the period of time during which the electronic
surveillance is approved; and
(F) whenever more than one electronic, mechanical, or other
surveillance device is to be used under the order, the
authorized coverage of the devices involved and what
minimization procedures shall apply to information subject to
acquisition by each device; and
(2) direct -
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified
communication or other common carrier, landlord, custodian, or
other specified person, or in circumstances where the Court
finds that the actions of the target of the application may
have the effect of thwarting the identification of a specified
person, such other persons, furnish the applicant forthwith all
information, facilities, or technical assistance necessary to
accomplish the electronic surveillance in such a manner as will
protect its secrecy and produce a minimum of interference with
the services that such carrier, landlord, custodian, or other
person is providing that target of electronic surveillance;
(C) that such carrier, landlord, custodian, or other person
maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished that such
person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate,
such carrier, landlord, custodian, or other person for
furnishing such aid.
(d) Exclusion of certain information respecting foreign power
targets
Whenever the target of the electronic surveillance is a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this title,
and each of the facilities or places at which the surveillance is
directed is owned, leased, or exclusively used by that foreign
power, the order need not contain the information required by
subparagraphs (C), (D), and (F) of subsection (c)(1) of this
section, but shall generally describe the information sought, the
communications or activities to be subjected to the surveillance,
and the type of electronic surveillance involved, including whether
physical entry is required.
(e) Duration of order; extensions; review of circumstances under
which information was acquired, retained or disseminated
(1) An order issued under this section may approve an electronic
surveillance for the period necessary to achieve its purpose, or
for ninety days, whichever is less, except that (A) an order under
this section shall approve an electronic surveillance targeted
against a foreign power, as defined in section 1801(a)(1), (2), or
(3) of this title, for the period specified in the application or
for one year, whichever is less, and (B) an order under this
chapter for a surveillance 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.
(2) Extensions of an order issued under this subchapter may be
granted on the same basis as an original order upon an application
for an extension and new findings made in the same manner as
required for an original order, except that (A) an extension of an
order under this chapter for a surveillance targeted against a
foreign power, as defined in section 1801(a)(5) or (6) 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, may be for a
period not to exceed one year if the judge finds probable cause to
believe that no communication of any individual United States
person will be acquired during the period, and (B) an extension of
an order under this chapter for a surveillance targeted against an
agent of a foreign power as defined in section 1801(b)(1)(A) of
this title may be for a period not to exceed 1 year.
(3) At or before the end of the period of time for which
electronic surveillance is approved by an order or an extension,
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.
(f) Emergency orders
Notwithstanding any other provision of this subchapter, when the
Attorney General reasonably determines that -
(1) an emergency situation exists with respect to the
employment of electronic surveillance to obtain foreign
intelligence information before an order authorizing such
surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this
subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic
surveillance if a judge having jurisdiction under section 1803 of
this title is informed by the Attorney General or his designee at
the time of such authorization that the decision has been made to
employ emergency electronic surveillance and if an application in
accordance with this subchapter is made to that judge as soon as
practicable, but not more than 72 hours after the Attorney General
authorizes such surveillance. If the Attorney General authorizes
such emergency employment of electronic surveillance, he shall
require that the minimization procedures required by this
subchapter for the issuance of a judicial order be followed. In the
absence of a judicial order approving such electronic surveillance,
the surveillance shall terminate when the information sought is
obtained, when the application for the order is denied, or after
the expiration of 72 hours from the time of authorization by the
Attorney General, whichever is earliest. In the event that such
application for approval is denied, or in any other case where the
electronic surveillance is terminated and no order is issued
approving the surveillance, no information obtained or evidence
derived from such surveillance 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
surveillance 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. A denial of the application made under this subsection
may be reviewed as provided in section 1803 of this title.
(g) Testing of electronic equipment; discovering unauthorized
electronic surveillance; training of intelligence personnel
Notwithstanding any other provision of this subchapter, officers,
employees, or agents of the United States are authorized in the
normal course of their official duties to conduct electronic
surveillance not targeted against the communications of any
particular person or persons, under procedures approved by the
Attorney General, solely to -
(1) test the capability of electronic equipment, if -
(A) it is not reasonable to obtain the consent of the persons
incidentally subjected to the surveillance;
(B) the test is limited in extent and duration to that
necessary to determine the capability of the equipment;
(C) the contents of any communication acquired are retained
and used only for the purpose of determining the capability of
the equipment, are disclosed only to test personnel, and are
destroyed before or immediately upon completion of the test;
and:
(D) Provided, That the test may exceed ninety days only with
the prior approval of the Attorney General;
(2) determine the existence and capability of electronic
surveillance equipment being used by persons not authorized to
conduct electronic surveillance, if -
(A) it is not reasonable to obtain the consent of persons
incidentally subjected to the surveillance;
(B) such electronic surveillance is limited in extent and
duration to that necessary to determine the existence and
capability of such equipment; and
(C) any information acquired by such surveillance is used
only to enforce chapter 119 of title 18, or section 605 of
title 47, or to protect information from unauthorized
surveillance; or
(3) train intelligence personnel in the use of electronic
surveillance equipment, if -
(A) it is not reasonable to -
(i) obtain the consent of the persons incidentally
subjected to the surveillance;
(ii) train persons in the course of surveillances otherwise
authorized by this subchapter; or
(iii) train persons in the use of such equipment without
engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and
duration to that necessary to train the personnel in the use of
the equipment; and
(C) no contents of any communication acquired are retained or
disseminated for any purpose, but are destroyed as soon as
reasonably possible.
(h) Retention of certifications, applications and orders
Certifications made by the Attorney General pursuant to section
1802(a) of this title and applications made and orders granted
under this subchapter shall be retained for a period of at least
ten years from the date of the certification or application.
(i) Bar to legal action
No cause of action shall lie in any court against any provider of
a wire or electronic communication service, landlord, custodian, or
other person (including any officer, employee, agent, or other
specified person thereof) that furnishes any information,
facilities, or technical assistance in accordance with a court
order or request for emergency assistance under this chapter for
electronic surveillance or physical search.
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