S.Amdt. 3597

SA 3597 is an amendment proposed by Mr. Durbin and Mr. Lee to be added to bill S. 2296. Its primary purpose is to prohibit warrantless access to the communications and other information of United States persons.

The amendment aims to change the Foreign Intelligence Surveillance Act of 1978 by adding the following:

• Restrictions on Access: It generally prohibits agency officers or employees from accessing communications content or information that would normally require a probable cause warrant for law enforcement purposes if it is returned from a covered query. A covered query is defined as one using a term associated with a United States person or one intended to find information about a United States person.

• Specific Exceptions: Access is still allowed if:

  • There is a court order, emergency authorization, or warrant.
  • There is an imminent threat of death or serious bodily harm (which requires reporting to the court and congressional committees within 14 days).
  • Consent is provided by the person or an authorized third party.
  • The access is for defensive cybersecurity purposes and is reported to the Foreign Intelligence Surveillance Court.

• Restrictions on Conducting Queries: The amendment prohibits conducting a covered query unless it is reasonably likely to retrieve foreign intelligence information. Exceptions include emergencies, consent, defensive cybersecurity, or legal obligations related to litigation and discovery.

• Accountability and Documentation: It requires an electronic record of facts to justify any authorized access. Agency heads must maintain a record system and report their compliance to Congress within 90 days after the National Defense Authorization Act for Fiscal Year 2026 is enacted.

• Consequences for Violations: If information is accessed via an emergency authorization but a subsequent court application is denied, or if the access violates the rules, that information generally cannot be used as evidence in any court or proceeding, nor can it be disclosed without consent (unless the Attorney General approves disclosure to prevent death or serious bodily harm).