12 2 STA T . 2 450PUBLIC LA W 110 – 2 6 1 —J UL Y 10 , 200 8‘ ‘ (A)theap p lic ati on ha sb een m a d eb y a F ede r alo f ficer and appro v ed by the Attorney G eneral
‘‘( B ) on the basis of the facts s u bmitted by the applicant , for the U nited S tates person w ho is the tar g et of the ac q uisition, there is probable cause to believe that the target is — ‘‘(i) a person reasonably believed to be located out - side the United States; and ‘‘(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power; ‘‘( C ) the proposed minimi z ation procedures meet the definition of minimization procedures under section 10 1(h) or 3 01( 4 ), as appropriate; and ‘‘( D ) the application that has been filed contains all statements and certifications required by subsection (b) and the certification or certifications are not clearly erro- neous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under sub- section (b)(3) . ‘‘( 2 ) PROBA B LEC A US E.— I n determining whether or not probable cause e x ists for purposes of paragraph (1)(B), a j udge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. N o United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States. ‘‘(3) R E VI E W .— ‘‘(A) L I M I T ATIO N ON REVIEW.—Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to ma k e the findings described in paragraph (1). ‘‘(B) REVIEW O FP ROBABLE CAUSE.—If the judge deter- mines that the facts submitted under subsection (b) are insufficient to establish probable cause under paragraph (1)(B), the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. T he Government may appeal an order under this subparagraph pursuant to subsection (f). ‘‘(C) REVIEW OF MINIMI Z ATION PROCE D URES.—If the judge determines that the proposed minimization proce- dures referred to in paragraph (1)(C) do not meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to sub- section (f). ‘‘(D) REVIEW OF CERTIFICATION.—If the judge deter- mines that an application pursuant to subsection (b) does not contain all of the required elements, or that the certifi- cation or certifications are clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3), the judge shall enter an order so stating and provide a written statement for the record of the reasons for the Records.
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