(a)Definitions.—In this section—
the term “United States person” means a citizen or national of the United States, an alien lawfully admitted for permanent residence, an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation that is incorporated in the United States.
(b)Executive Agreement Requirements.—For purposes of this chapter, chapter 121, and chapter 206, an executive agreement governing access by a foreign government to data subject to this chapter, chapter 121, or chapter 206 shall be considered to satisfy the requirements of this section if the Attorney General, with the concurrence of the Secretary of State, determines, and submits a written certification of such determination to Congress, including a written certification and explanation of each consideration in paragraphs (1), (2), (3), and (4), that—
(1) the domestic law of the foreign government, including the implementation of that law, affords robust substantive and procedural protections for privacy and civil liberties in light of the data collection and activities of the foreign government that will be subject to the agreement, if—
such a determination under this section takes into account, as appropriate, credible information and expert input; and
(B) the factors to be met in making such a determination include whether the foreign government—
has adequate substantive and procedural laws on cybercrime and electronic evidence, as demonstrated by being a party to the Convention on Cybercrime, done at Budapest November 23, 2001, and entered into force January 7, 2004, or through domestic laws that are consistent with definitions and the requirements set forth in chapters I and II of that Convention;
(iii) adheres to applicable international human rights obligations and commitments or demonstrates respect for international universal human rights, including—
has clear legal mandates and procedures governing those entities of the foreign government that are authorized to seek data under the executive agreement, including procedures through which those authorities collect, retain, use, and share data, and effective oversight of these activities;
has sufficient mechanisms to provide accountability and appropriate transparency regarding the collection and use of electronic data by the foreign government; and
demonstrates a commitment to promote and protect the global free flow of information and the open, distributed, and interconnected nature of the Internet;
(4) the agreement requires that, with respect to any order that is subject to the agreement—
the foreign government may not issue an order at the request of or to obtain information to provide to the United States Government or a third-party government, nor shall the foreign government be required to share any information produced with the United States Government or a third-party government;
(D) an order issued by the foreign government—
shall be for the purpose of obtaining information relating to the prevention, detection, investigation, or prosecution of serious crime, including terrorism;
shall be based on requirements for a reasonable justification based on articulable and credible facts, particularity, legality, and severity regarding the conduct under investigation;
shall be subject to review or oversight by a court, judge, magistrate, or other independent authority prior to, or in proceedings regarding, enforcement of the order; and
(vi) in the case of an order for the interception of wire or electronic communications, and any extensions thereof, shall require that the interception order—
may not last longer than is reasonably necessary to accomplish the approved purposes of the order; and
an order issued by the foreign government may not be used to infringe freedom of speech;
the foreign government shall, using procedures that, to the maximum extent possible, meet the definition of minimization procedures in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801), segregate, seal, or delete, and not disseminate material found not to be information that is, or is necessary to understand or assess the importance of information that is, relevant to the prevention, detection, investigation, or prosecution of serious crime, including terrorism, or necessary to protect against a threat of death or serious bodily harm to any person;
the foreign government may not disseminate the content of a communication of a United States person to United States authorities unless the communication may be disseminated pursuant to subparagraph (G) and relates to significant harm, or the threat thereof, to the United States or United States persons, including crimes involving national security such as terrorism, significant violent crime, child exploitation, transnational organized crime, or significant financial fraud;
the foreign government shall afford reciprocal rights of data access, to include, where applicable, removing restrictions on communications service providers, including providers subject to United States jurisdiction, and thereby allow them to respond to valid legal process sought by a governmental entity (as defined in section 2711) if foreign law would otherwise prohibit communications-service providers from disclosing the data;
(c)Limitation on Judicial Review.—
A determination or certification made by the Attorney General under subsection (b) shall not be subject to judicial or administrative review.
(d)Effective Date of Certification.—
(1)Notice.—Not later than 7 days after the date on which the Attorney General certifies an executive agreement under subsection (b), the Attorney General shall provide notice of the determination under subsection (b) and a copy of the executive agreement to Congress, including—
(2)Entry into force.—
An executive agreement that is determined and certified by the Attorney General to satisfy the requirements of this section shall enter into force not earlier than the date that is 180 days after the date on which notice is provided under paragraph (1), unless Congress enacts a joint resolution of disapproval in accordance with paragraph (4).
(3)Requests for information.—
(A)Joint resolution defined.—In this paragraph, the term “joint resolution” means only a joint resolution—
the matter after the resolving clause of which is as follows: “That Congress disapproves the executive agreement governing access by ___ to certain electronic data as submitted by the Attorney General on ___”, the blank spaces being appropriately filled in.
(B)Joint resolution enacted.—
Notwithstanding any other provision of this section, if not later than 180 days after the date on which notice is provided to Congress under paragraph (1), there is enacted into law a joint resolution disapproving of an executive agreement under this section, the executive agreement shall not enter into force.
(C)Introduction.—During the 180-day period described in subparagraph (B), a joint resolution of disapproval may be introduced—
(5)Floor consideration in house of representatives.—
(6)Consideration in the senate.—
(A)Committee referral.—A joint resolution of disapproval introduced in the Senate shall be referred jointly—
(B)Reporting and discharge.—
If a committee to which a joint resolution of disapproval was referred has not reported the joint resolution within 120 days after the date of referral of the joint resolution, that committee shall be discharged from further consideration of the joint resolution and the joint resolution shall be placed on the appropriate calendar.
(C)Proceeding to consideration.—
It is in order at any time after both the Committee on the Judiciary and the Committee on Foreign Relations report a joint resolution of disapproval to the Senate or have been discharged from consideration of such a joint resolution (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the joint resolution, and all points of order against the joint resolution (and against consideration of the joint resolution) are waived. The motion is not debatable or subject to a motion to postpone. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order.
(D)Consideration in the senate.—
In the Senate, consideration of the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution is not in order.
(E)Consideration of veto messages.—
Debate in the Senate of any veto message with respect to a joint resolution of disapproval, including all debatable motions and appeals in connection with the joint resolution, shall be limited to 10 hours, to be equally divided between, and controlled by, the majority leader and the minority leader or their designees.
(7)Rules relating to senate and house of representatives.—
(A)Treatment of senate joint resolution in house.—In the House of Representatives, the following procedures shall apply to a joint resolution of disapproval received from the Senate (unless the House has already passed a joint resolution relating to the same proposed action):
The joint resolution shall be referred to the appropriate committees.
Beginning on the third legislative day after each committee to which a joint resolution has been referred reports the joint resolution to the House or has been discharged from further consideration thereof, it shall be in order to move to proceed to consider the joint resolution in the House. All points of order against the motion are waived. Such a motion shall not be in order after the House has disposed of a motion to proceed on the joint resolution. The previous question shall be considered as ordered on the motion to its adoption without intervening motion. The motion shall not be debatable. A motion to reconsider the vote by which the motion is disposed of shall not be in order.
The joint resolution shall be considered as read. All points of order against the joint resolution and against its consideration are waived. The previous question shall be considered as ordered on the joint resolution to final passage without intervening motion except 2 hours of debate equally divided and controlled by the sponsor of the joint resolution (or a designee) and an opponent. A motion to reconsider the vote on passage of the joint resolution shall not be in order.
(B)Treatment of house joint resolution in senate.—
(i) If, before the passage by the Senate of a joint resolution of disapproval, the Senate receives an identical joint resolution from the House of Representatives, the following procedures shall apply:
That joint resolution shall not be referred to a committee.
(C)Application to revenue measures.—
The provisions of this paragraph shall not apply in the House of Representatives to a joint resolution of disapproval that is a revenue measure.
(8)Rules of house of representatives and senate.—This subsection is enacted by Congress—
as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such is deemed a part of the rules of each House, respectively, and supersedes other rules only to the extent that it is inconsistent with such rules; and
(e)Renewal of Determination.—
(2)Report.—Upon renewing a determination under subsection (b), the Attorney General shall file a report with the Committee on the Judiciary and the Committee on Foreign Relations of the Senate and the Committee on the Judiciary and the Committee on Foreign Affairs of the House of Representatives describing—
any substantive changes to the agreement or to the relevant laws or procedures of the foreign government since the original determination or, in the case of a second or subsequent renewal, since the last renewal; and
(f)Revisions to Agreement.—A revision to an agreement under this section shall be treated as a new agreement for purposes of this section and shall be subject to the certification requirement under subsection (b), and to the procedures under subsection (d), except that for purposes of a revision to an agreement—
the applicable time period under paragraphs (2), (4)(A)(i), (4)(B), and (4)(C) of subsection (d) shall be 90 days after the date notice is provided under subsection (d)(1); and
Any determination or certification under subsection (b) regarding an executive agreement under this section, including any termination or renewal of such an agreement, shall be published in the Federal Register as soon as is reasonably practicable.
A United States authority that receives the content of a communication described in subsection (b)(4)(H) from a foreign government in accordance with an executive agreement under this section shall use procedures that, to the maximum extent possible, meet the definition of minimization procedures in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) to appropriately protect nonpublicly available information concerning United States persons.