S. 3696 — FISA Accountability and Extension Act of 2026

This section amends Section 5(d) of the Reforming Intelligence and Securing America Act by striking the requirement for attendance by Members of Congress and designated staff "on their behalf, pursuant to such procedures as the Attorney General, in consultation with the Director of National Intelligence may establish," and inserting "in addition or on their behalf"; adds subsection (e) voiding any prior such procedures, including the Attorney General Procedures for Congressional Attendance at Proceedings of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review dated November 18, 2024; and adds subsection (f) prohibiting the Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR) from imposing restrictions on such attendees not also applied to the Department of Justice, requiring full observation of proceedings, maximum use of courtroom space for physical access, or full visual and audio access if space constraints prevent physical presence. (As background, the FISC, established under 50 U.S.C. 1803(a), hears applications for and grants orders approving electronic surveillance under the Foreign Intelligence Surveillance Act (FISA).)

This section amends criminal and civil penalty provisions of the Foreign Intelligence Surveillance Act of 1978 (FISA) as follows: (1) deems information acquired under FISA Section 702 (i.e., warrantless electronic surveillance targeting non-U.S. persons reasonably believed to be located outside the United States to acquire foreign intelligence information) to be information acquired from electronic surveillance pursuant to FISA Title I (traditional court-authorized surveillance), for purposes of criminal penalties under Section 109(a) (50 U.S.C. 1810); (2) expands civil actions under Section 110 (50 U.S.C. 1810) to cover violations of 18 U.S.C. 1623 (false declarations under oath before a U.S. court or grand jury) or knowing aid or abetment of FISA violations, adds a provider immunity exception barring suits against wire/electronic communication service providers, landlords, custodians, or others furnishing information, facilities, or assistance pursuant to a FISA court order or emergency request, deems Section 702 information to be Title I electronic surveillance for Section 110 purposes, and establishes a five-year statute of limitations from the aggrieved party's first actual notice of the violation; and (3) expands civil liability under Section 308 (50 U.S.C. 1828) for physical search violations to include knowing aid or abetment.

This section revises the process for designating amicus curiae (i.e., individuals to assist the Foreign Intelligence Surveillance Court (FISC) and Court of Review (COR) with significant legal questions) under the Foreign Intelligence Surveillance Act of 1978. (As background: The FISC, composed of 11 district judges designated by the Chief Justice from at least seven judicial circuits, authorizes electronic surveillance for foreign intelligence purposes; the COR, with three designated judges, reviews FISC denials.) Specifically, the section (1) requires the Senate majority leader (with minority leader consent and consultations with intelligence and judiciary committee leaders) and House Speaker (similarly) to submit lists of at least six individuals each within 90 days of enactment of the FISA Accountability and Extension Act of 2026 for presiding judges' consideration; (2) directs presiding judges to designate at least eight individuals from those lists after enactment (to eight from five); (3) permits list modifications while maintaining at least six individuals; and (4) removes all current amicus curiae upon the first list submission, with future designations following the new process.

This section adds paragraph (4) to 5 U.S.C. §416(e) providing a rule of construction that nothing in the subsection may be construed to revoke or diminish any right of an individual under 5 U.S.C. §§2303 or 7211 to make a protected disclosure to any congressional committee. (Thus, intelligence community whistleblowers retain their existing statutory rights to furnish information to Congress, beyond the urgent concern reporting procedures specified in §416.)

This section extends the maximum duration of extensions for authorities under the FISA Amendments Act of 2008 from two years to eight years. (As background, Section 403 authorizes the Attorney General and Director of National Intelligence to certify to Congress and extend the sunset of Title VII of FISA—primarily Section 702 authority for warrantless electronic surveillance targeting non-U.S. persons abroad believed to possess foreign intelligence information.)