Congressional Record: July 13, 2005 (Senate)
Page S8222-S8233
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER (for himself, Mrs. Feinstein, and Mr. Kyl):
S. 1389. A bill to reauthorize and improve the USA PATRIOT Act; to
the Committee on the Judiciary.
Mr. SPECTER. Mr. President, I seek recognition to introduce, along
with my colleagues Senator Feinstein and Senator Kyl, the USA PATRIOT
Improvement and Reauthorization Act of
[[Page S8223]]
2005, a bipartisan bill to reauthorize provisions of the landmark anti-
terrorism legislation we adopted in the wake of September 11, 2001. We
continue to give tools to law enforcement to protect our security; and,
at the same time, we make important improvements to the law to ensure
greater protection of civil liberties and to require greater
accountability through enhanced reporting and oversight.
In recent months, the political rhetoric about the PATRIOT Act has
reached a fever pitch. Not surprisingly, however, the reality fails to
match the rhetoric. As the Washington Post has editorialized,
``[a]lthough the PATRIOT Act has become a catch phrase for civil
liberties anxieties, it in fact has little connection to the most
serious infringements on civil liberties in the war on terrorism.'' At
the same time, it would be unwise to credit the act with all of our
hard-won successes in the effort to combat terror. As evidenced by the
grisly attacks in London last week, no law or surveillance regime can
prevent every terrorist attack.
Nevertheless, as last week's attacks remind us, the danger of
international terrorism remains real, and has not abated in the years
since 9/11. So, we must remain vigilant, and we must be cautious not to
recreate the legal circumstances that arguably contributed to
significant intelligence failures before 9/11. Reauthorizing the
PATRIOT Act, while incorporating improvements designed to safeguard our
liberties and enhance oversight, is the right thing to do. To quote the
Post again, ``there is little evidence of abuse--and considerable
evidence that the law has facilitated needed cooperation. Based on
what's known, it merits reauthorization with minor modifications.''
The bill we introduce today is the result of careful consideration.
We have listened both to the concerns of critics and the arguments of
the administration. We have probed and prodded both for information.
And, we have consulted with both sides of the political aisle to
fashion language designed to maintain the Government's ability to
effectively investigate--and hopefully preempt--terrorist attacks,
while making changes to reassure the American people that the law will
be used responsibly, consistent with the rights enshrined in our
Constitution.
Mr. President, I would like to focus on the changes we have made to
those PATRIOT Act provisions that have generated the most controversy.
The PATRIOT Act modified electronic surveillance authority under the
Foreign Intelligence Surveillance Act of 1978, or FISA, to permit
multipoint wiretaps of suspected terrorists or spies; but only upon a
judicial finding of probable cause to believe the target is an agent of
a foreign power and a further finding that the target's actions could
thwart efforts to identify a single phone company or similar
communications provider upon whom to serve the order. The principle
behind this authority, which parallels similar authority in the
criminal law, is that surveillance of a suspected terrorist or spy
should be permitted to continue, uninterrupted, when the target changes
phones. By definition, a multipoint wiretap order does not identify the
specific phone to be tapped, because the order allows the Government to
track the person not a single device. This was a change made necessary
by the advent of cell phones, which are easily purchased and then
discarded. After passage of the PATRIOT Act, however, this authority
was further modified, so that a FISA surveillance order only had to
specify the identity of the target ``if known.'' If the identity was
unknown, the order had to include a ``description of the target,'' but
there was no further requirement about how detailed the description of
such ``John Doe'' targets had to be--raising concerns that the
Government could conduct roving surveillance of a broadly described
target. Our bill corrects this shortcoming and makes other improvements
to the roving authority under FISA.
First, the bill responds to concerns that so-called John Doe roving
wiretaps could be used against someone described generically as a
``Middle Eastern male'' or ``Hispanic female'' by requiring such orders
to include ``sufficient information to describe a specific target with
particularity.'' This makes it clear that, although such orders may
``rove'' from one phone to another when the target changes devices, the
Government cannot ``rove'' from one investigative target to another,
seeking to identify the right person. Through this change, we avoid
rewarding terrorists or spies who successfully conceal their
identities, but we also protect innocent Americans from unwarranted
surveillance.
The bill further minimizes the chance that ``roving'' wiretaps could
be used indiscriminately against multiple devices by requiring the
Government to notify the court every time it begins surveillance of a
new device. This notice must be made within 10 days of the initiation
of surveillance, and must include a description of the new device, as
well as the ``facts and circumstances'' indicating that each new phone
or similar device is ``being used, or is about to be used,'' by the
target. The notice must also update the techniques being used to
minimize the interception and retention of unrelated communications.
Finally, the bill adds new reporting requirements and extends the
sunset date until December 31, 2009, allowing Congress to revisit the
need for this surveillance tool.
I would next like to turn to the bill's modification of section 215
of the PATRIOT Act, perhaps the most controversial provision of the
act, and one that is frequently misidentified as the ``library''
provision.
Prior to the PATRIOT Act, FISA authorized the FBI to obtain orders
for the production of certain types of business records, including
those of hotels, car rental agencies and storage facilities, in limited
circumstances. Under the pre-PATRIOT standard, however, the FBI could
not even seek the records of someone observed in the presence of a
suspected spy or terrorist, unless it had specific reasons to suspect
the associate was himself a spy or terrorist. Strangely, this standard
was significantly higher than the standard applicable to similar
records requests in criminal cases. Accordingly, section 215 of the
PATRIOT Act amended FISA to permit orders for any records or tangible
things sought in connection with an authorized investigation to obtain
foreign intelligence not concerning a U.S. person or to protect against
international terrorism or clandestine intelligence activities.
As enacted, however, section 215 did not require the FBI to establish
the factual basis for the requested order. According to critics,
section 215 rendered the FISA court little more than a rubber stamp for
the Government's requests. Moreover, section 215 included no explicit
right for recipients to confer with legal counsel. And, despite oft-
repeated comparisons to grand jury subpoenas, orders under section 215
included no explicit right to judicial review akin to a motion to quash
a subpoena. Indeed, in testimony before the Judiciary Committee earlier
this year, Attorney General Gonzales conceded these shortcomings in the
law, and expressed a new willingness to consider modifications of
section 215.
Our bill addresses these issues, and adds still more protections to
ensure the provision is used responsibly. First, the bill eliminates
the mere certification of relevance required by current law and
enhances the factual showing that must be made by the Government to
obtain records. It also requires the court to agree with the adequacy
of the Government's factual showing, and adds several procedural
protections including heightened approval requirements and increased
reporting for orders seeking sensitive materials, like library or
medical records. Specifically, the bill requires the Government to
submit ``a statement of facts'' showing ``reasonable grounds to believe
that the records or other things sought are relevant'' to an authorized
investigation. The bill then addresses concerns about the FISA judge
acting as a ``rubber stamp'' by requiring the court to find that the
facts establish ``reasonable grounds to believe'' the items sought are
relevant. The bill also adds an explicit right to consult counsel;
provides for judicial review; requires approval of the FBI Director or
Deputy Director for orders concerning library records and other
sensitive materials; and adds annual reports to Congress regarding use
of the provision to obtain library records, book sales records,
firearms sales records, health information or tax information. This
reporting feature is important because it enables
[[Page S8224]]
the Congress to monitor the Justice Department's activities.
In addition to the foregoing, the bill also requires an annual report
on the number of times FISA orders for records and tangible things have
been issued, modified, or denied. At our April 5 hearing, the Attorney
General declassified the fact that, as of March 30, 2005, the FISA
court had ``granted the department's request for a 215 order 35
times.'' He further noted that section 215 had not been used to obtain
library or bookstore records, medical records or gun sale records.
According to the Attorney General, section 215 had been used only to
obtain driver's license records, public accommodation records,
apartment leasing records, credit card records and subscriber
information, such as names and addresses for telephone numbers captured
through court-authorized pen register devices. It is our hope that
regular public reporting, together with enhanced congressional
reporting, will bolster public confidence in the law without
compromising sensitive investigations. Finally, as with the multipoint
surveillance authority, we have extended the sunset date for section
215 of the PATRIOT Act until December 31, 2009, so Congress must
revisit the continuing need for this tool.
Another PATRIOT Act provision that has inspired significant criticism
is section 213 of the act, which authorized delayed notice or so-called
sneak & peek search warrants. Unlike the other sections I have
discussed, section 213 is not scheduled to sunset later this year.
Nevertheless, in recognition of the concerns raised about this
provision, we have made several changes to this authority as well.
Prior to the PATRIOT Act, three Federal circuits had approved the
practice of delayed notice search warrants. Supreme Court precedent
also supported the legality of judicially authorized covert entries.
Indeed, in Dalia v. United States, a 1979 case involving the analogous
situation of a covert entry to install a listening device, the Supreme
Court described as ``frivolous'' the argument that ``covert entries are
unconstitutional for their lack of notice.'' Nevertheless, in the 1995
case of Wilson v. Arkansas, which focused on whether officers must
``knock and announce'' their presence before serving a warrant, the
Court held that, ``in some circumstances an officer's unannounced entry
into a home might be unreasonable under the Fourth Amendment.'' But,
the Court did not address sneak and peek warrants directly, and it left
``to the lower courts the task of determining the circumstances under
which an unannounced entry is reasonable under the Fourth Amendment.''
The PATRIOT Act sought to create a unified standard for delayed
notice searches. Under the PATRIOT Act, notice of a search may be
delayed if a court finds reasonable cause to believe immediate notice
may have an adverse result, including: (A) endangering the life or
physical safety of an individual; (B) flight from prosecution; (C)
destruction of, or tampering with, evidence; (D) intimidation of
potential witnesses; or (E) otherwise seriously jeopardizing an
investigation or unduly delaying a trial. Notice must be provided
within a ``reasonable period'' of time, which may be extended for good
cause. As noted by critics, however, the period of delay could be
indefinite. And, in at least six instances reported by the Department
of Justice, courts have authorized unspecified periods of delay--such
as delays until the conclusion of an investigation.
Over the last 3 months, at the Judiciary Committee's request, the
Department of Justice has furnished new information about its use of
delayed notice search warrants. This data shows that delayed notice
warrants account for less than 0.2 percent of the warrants handled by
Federal district courts. Moreover, delayed notice warrants based solely
on seriously jeopardizing an investigation account for less than 1 in
every 1,500 warrants--mitigating concerns that the ``catch-all''
provision is being overused. DOJ has also now supplied summaries of 15
cases--out of a total of 22 where the delay was based solely on the
``catch-all.'' In these cases, the delay was based on the substantial
risk of comprising a title III wiretap or frustrating efforts to
identify the full scope of a complex criminal enterprise. Accordingly,
the draft bill does not eliminate seriously jeopardizing an
investigation as a basis for delay. Instead, the bill enhances
reporting requirements--including the addition of new public reporting
requirements--to ensure that DOJ continues to use this authority
responsibly. The bill also requires the court to set a ``date certain''
for notice to be provided, eliminating concerns about indefinite
delays. The bill permits extensions of the delay period, but requires
that extensions be granted only ``upon an updated showing of the need
for further delay.'' Finally, the bill limits extensions to 90 days
each, which parallels the notice requirements for criminal wiretaps and
``bugs'' which are arguably more invasive that a one-time search,
because they may require covert entries and they continue to collect
personal data for extended periods of time.
As these changes illustrate, while reauthorizing the PATRIOT Act, we
have emphasized enhanced oversight through reporting. This bill adds
reporting requirements to several PATRIOT provisions, including the
aforementioned public reporting on delayed notice search warrants and
FISA business records orders. The bill also adds public reporting on
FISA pen registers and the emergency authorization of FISA electronic
surveillance. Moreover, throughout FISA, the draft bill adds the Senate
and House Judiciary Committees to reporting provisions currently
limited to the Senate and House Intelligence Committees.
In addition, we have made adjustments to other provisions of the
PATRIOT Act. These include:
Section 203, sharing criminal information with intelligence agencies:
The bill requires notice to the authorizing court when foreign
intelligence information gathered via a court-authorized criminal
wiretap is disclosed to intelligence agencies.
Section 207, Duration of FISA surveillance of non-U.S. persons: The
bill extends surveillance periods for non-U.S. persons under FISA, 120
days for original orders, and up to 1 year for extensions. Also, it
extends the duration of FISA pen registers for non-U.S. persons, up to
1 year.
Section 212, emergency disclosure of electronic communications: The
bill adds new reporting requirements to ensure the government is using
this authority appropriately. The bill also makes technical corrections
to harmonize the language permitting the emergency disclosure of
contents and records.
Section 505, national security letters: The bill incorporates
legislation introduced by Senator Cornyn to address a 2004 Federal
district court decision holding a national security letter, or NSL,
served on an Internet service provider unconstitutional. This
legislation permits disclosure to legal counsel; allows court
challenges; and permits judicial enforcement of NSLs.
Sunsets: As I have noted, the bill retains sunsets for PATRIOT
sections 206, multi-point wiretaps, and 215, FISA orders for business
records and tangible things. The bill also extends the sunset date for
the ``Lone Wolf'' provision added to FISA by last year's Intelligence
Reform and Terrorism Prevention Act until December 31, 2009.
Taken together, these changes provide important checks on the
governmental authorities contained in the PATRIOT Act. At the same
time, these amendments honor President Bush's call for Congress to
reauthorize the act without weakening the tools used to combat
terrorism. I am pleased to be joined by Senators Feinstein and Kyl in
introducing this measure, and I look forward to securing the support of
other Judiciary Committee members as we move to consider this bill.
Mr. President, I would ask that the Washington Post editorial
mentioned in my remarks, as well as three letters from the Department
of Justice on the use of delayed notice warrants, be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, June 13, 2005]
Patriot Second Act
Congress passed the USA Patriot Act in haste after the
Sept. 11, 2001, attacks. Critics predicted that the act would
deal a blow to liberty, while proponents insisted it was
essential to the fight against al Qaeda. A wise compromise
gave the administration new powers but had them expire at the
end of 2005, giving Congress a chance to take a second look.
Consequently, various congressional committees are
considering whether
[[Page S8225]]
the Patriot Act should be reauthorized, rolled back or
expanded--and whether this time it should be made permanent,
as the administration wishes, or renewed only temporarily.
Although the Patriot Act has become a catch phrase for
civil liberties anxieties, it in fact has little connection
to the most serious infringements on civil liberties in the
war on terrorism. It has nothing to do with the detention of
Americans as enemy combatants, the abuse of prisoners
captured abroad or the roundup of foreigners for minor
immigration violations. The law's key sections were designed
to expand investigative powers in national security cases and
permit more information-sharing between intelligence and law
enforcement agencies. These have sparked controversy more
because of abuses they might permit than because of anything
that is known to have happened. Indeed, there is little
evidence of abuse--and considerable evidence that the law has
facilitated needed cooperation. Based on what's known, it
merits reauthorization with minor modifications.
But first more ought to be known. Far from regularly
releasing information about its use of the law, the
administration has generally hidden even basic information--
only to release it when politically convenient. Neither in
the Patriot Act nor in the surveillance statute it amended
did Congress require the sort of routine public reporting
that would offer Americans a useful ongoing sense of the law
in operation. And while the administration has, in recent
months, released a good deal of information to support its
request for reauthorization, the public still lacks a full
picture. Before reauthorizing the Patriot Act, Congress needs
to demand and release sufficient information. And in revising
the law, Congress should make it more transparent, so the
public is not at the mercy of the administration's sense of
openness.
Nor should reauthorization be permanent. Knowing it had to
return to Congress for reauthorization was one of the few
incentives for the administration to release information;
it's useful to maintain that incentive. And it's not overly
burdensome to ask the executive branch to periodically
justify its need for such powerful investigative tools.
Finally, the Senate intelligence committee has included as
part of its reauthorization package a broad authority for the
FBI to collect information from businesses in intelligence
matters using an administrative subpoena the FBI can issue on
its own. This should not become law. Administrative subpoenas
make sense in regulatory matters have made their way into
certain criminal and security investigations. But the Justice
Department already can get the records it needs using the
traditional, wide-ranging investigative powers of the grand
jury or another provision of the Patriot Act. Administrative
subpoenas are more secretive than grand jury subpoenas, and
they involve less scrutiny from prosecutors; they strip away
a layer of oversight. The administration may well make a
persuasive case for Patriot Act renewal, with increased
oversight. But this particular power should not be granted.
____
Department of Justice,
Office of Legislative Affairs,
Washington, DC, Apr. 4, 2005.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: We have indicated in some of our
responses to questions for the record, including those
recently submitted on April 1, 2005, that we would supplement
our responses to some questions. This letter is intended to
supplement previous information we have provided regarding
the usage of section 213 of the USA PATRIOT Act (``the
Act''), relating to delayed-notice search warrants. We
believe the information contained herein completely answers
all the Committee's questions submitted to date regarding
section 213 and we look forward to working with you on this
and other issues related to the reauthorization of the USA
PATRIOT Act.
As you know, the Department of Justice believes very
strongly that section 213 is an invaluable tool in the war on
terror and our efforts to combat serious criminal conduct. In
passing the USA PATRIOT Act, Congress recognized that
delayed-notice search warrants are a vital aspect of the
Department's strategy of prevention; detecting and
incapacitating terrorists, drug dealers and other criminals
before they can harm our nation. Codified at 18 U.S.C.
Sec. 3103a, section 213 of the Act created an explicit
statutory authority for investigators and prosecutors to ask
a court for permission to delay temporarily notice that a
search warrant was executed. While not scheduled to sunset on
December 31, 2005, section 213 has been the subject of
criticism and various legislative proposals. For the
following reasons, the Department does not believe any
modifications to section 213 are required.
To begin with, delayed-notice search warrants have been
used by law enforcement officers for decades. Such warrants
were not created by the USA PATRIOT Act. Rather, the Act
simply codified a common-law practice recognized by courts
across the country. Section 213 simply created a uniform
nationwide standard for the issuance of those warrants, thus
ensuring that delayed-notice search warrants are evaluated
under the same criteria across the nation. Like any other
search warrant, a delayed-notice search warrant is issued by
a federal judge only upon a showing that there is probable
cause to believe that the property to be searched for or
seized constitutes evidence of a criminal offense. A delayed-
notice warrant differs from an ordinary search warrant only
in that the judge specifically authorizes the law enforcement
officers executing the warrant to wait for a limited period
of time before notifying the subject of the search that a
search was executed.
In addition, investigators and prosecutors seeking a
judge's approval to delay notification must show that, if
notification were made contemporaneous to the search, there
is reasonable cause to believe one of the following might
occur: (1) notification would endanger the life or physical
safety of an individual; (2) notification would cause flight
from prosecution; (3) notification would result in
destruction of, or tampering with, evidence; (4) notification
would result in intimidation of potential witnesses; or (5)
notification would cause serious jeopardy to an investigation
or unduly delay a trial.
To be clear, it is only in these five tailored
circumstances that the Department may request judicial
approval to delay notification, and a federal judge must
agree with the Department's evaluation before approving any
delay.
Delayed-notice search warrants provide a crucial option to
law enforcement. If immediate notification were required
regardless of the circumstances, law enforcement officials
would be too often forced into making a ``Hobson's choice'':
delaying the urgent need to conduct a search and/or seizure
or conducting the search and prematurely notifying the target
of the existence of law enforcement interest in his or her
illegal conduct and undermine the equally pressing need to
keep the ongoing investigation confidential.
A prime example in which a delayed-notice search warrant
was executed is Operation Candy Box. This operation was a
complex multi-year, multi-country, multi-agency investigative
effort by the Organized Crime Drug Enforcement Task Force,
involving the illegal trafficking and distribution of both
MDMA (also known as Ecstasy) and BC bud (a potent and
expensive strain of marijuana). The delayed-notice search
warrant used in the investigation was obtained on the grounds
that notice would cause serious jeopardy to the investigation
(see 18 V.S.C. Sec. 2705(a)(2) (E)).
In 2004, investigators learned that an automobile loaded
with a large quantity of Ecstasy would be crossing the U.S.-
Canadian border en route to Florida. On March 5, 2004, after
the suspect vehicle crossed into the United States near
Buffalo, Drug Enforcement Administration (DEA) Special Agents
followed the vehic1e until the driver stopped at a
restaurant. One agent then used a duplicate key to enter the
vehicle and drive away while other agents spread broken glass
in the parking space to create the impression that the
vehicle had been stolen. The ruse worked, and the drug
traffickers were not tipped off that the DEA had seized their
drugs. A subsequent search of the vehicle revealed a hidden
compartment containing 30,000 MDMA tablets and ten pounds of
BC bud Operation Candy Box was able to continue because
agents were able to delay notification of the search for more
than three weeks.
On March 31, 2004, in a two-nation crackdown the Department
notified the owner of the car of the seizure and likewise
arrested more than 130 individuals. Ultimately, Operation
Candy Box resulted in approximately 212 arrests and the
seizure of $8,995,811 in U.S. currency, 1,546 pounds of MDMA
powder, 409,300 MDMA tablets, 1,976 pounds of marijuana, 6.5
pounds of methamphetamine, jewelry valued at $174,000,38
vehicles, and 62 weapons. By any measure, Operation Candy
Box seriously disrupted the Ecstasy market in the United
States and made MDMA pills less potent, more expensive and
harder to find. There has been a sustained nationwide
eight percent per pill price increase since the
culmination of Operation Candy Box; a permanent decrease
of average purity per pill to the lowest levels since
1996; and currency seizures have denied traffickers access
to critical resources--preventing the distribution of
between 17 and 34 million additional Ecstasy pills to our
Nation's children.
Had Operation Candy Box agents, however, been required to
provide immediate notification of the search of the car and
seizure of the drugs, they would have prematurely revealed
the existence of and thus seriously jeopardized the ultimate
success of this massive long-term investigation. The dilemma
faced by investigators in the absence of delayed notification
is even more acute in terrorism investigations where the
slightest indication of governmental interest can lead a
loosely connected cell to dissolve. Fortunately though,
because delayed-notice search warrants are available,
investigators do not have to choose between pursuing
terrorists or criminals and protecting the public--we can do
both.
It is important to stress that in all circumstances the
subject of a criminal search warrant is informed of the
search. It is simply false to suggest, as some have, that
delayed-notice search warrants allow the government to search
an individual's ``houses, papers, and effects'' without
notifying them of the search. In every case where the
government executes a criminal search warrant, including
those issued pursuant to section 213, the subject of the
search is told of the search. With respect to delayed-notice
search warrants, such notice is simply delayed for a
reasonable period of time--a time period defined by a Federal
judge.
[[Page S8226]]
Delayed-notice search warrants are constitutional and do
not violate the Fourth Amendment. The U.S. Supreme Court
expressly held in Dalia v. United States that the Fourth
Amendment does not require law enforcement to give immediate
notice of the execution of a search warrant. Since Dalia,
three Federal courts of appeals have considered the
constitutionality of delayed-notice search warrants, and all
three have upheld their constitutionality. To our knowledge,
no court has ever held otherwise. In short, long before the
enactment of the USA PATRIOT Act, it was clear that delayed
notification was appropriate in certain circumstances; that
remains true today. The USA PATRIOT Act simply resolved the
mix of inconsistent rules, practices and court decisions
varying from circuit to circuit. Therefore, section 213 had
the beneficial impact of mandating uniform and equitable
application of the authority across the Nation.
The Committee has requested detailed information regarding
how often section 213 has been used. Let us assure you that
the use of a delayed-notice search warrant is the exception,
not the rule. Law enforcement agents and investigators
provide immediate notice of a search warrant's execution in
the vast majority of cases. According to Administrative
Office of the U.S. Courts (AOUSC), during a 12-month period
ending September 30, 2003, U.S. District Courts handled
32,539 search warrants. By contrast, in one 14-month period--
between April 2003 and July 2004--the Department used the
section 213 authority only 61 times according to a Department
survey. Even when compared to the AOUSC data for a shorter
period of time, the 61 uses of section 213 sti1l only
accounts for less than 0.2% of the total search warrants
handled by the courts. Indeed, since the USA PATRIOT Act was
enacted on October 26, 2001, through January 31, 2005--a
period of more than 3 years--the Department has uti1ized a
delayed-notice search warrant only 155 times.
We have been working with United States Attorneys across
the country to refine our data and develop a more complete
picture of the usage of the section 213 authority. We have
manually surveyed each of the 94 United States Attorneys'
Offices for this information which, we understand, is not in
a database. We are pleased to report our additional findings
below.
In September 2003, the Department made public the fact that
we had exercised the authority contained in section 213 to
delay notification 47 times between October 2001, and Apri1
1, 2003. Our most recent survey, which covers the time frame
between April 1, 2003, and January 31, 2005, indicates we
have delayed notification of searches in an additional 108
instances. Since April 1, 2003, no request for a delayed-
notice search warrant has been denied. It is possible to
misconstrue this information as evidence that courts are
merely functioning as a ``rubber stamp'' for the Department's
requests. In reality, however, it is an indication that the
Department takes the authority codified by the USA PATRIOT
Act very seriously. We judiciously seek court approval only
in those rare circumstances--those that fit the narrowly
tailored statute--when it is absolutely necessary and
justified. As explained above, the Department estimates that
it seeks to delay notice of fewer than 1 in 500 search
warrants issued nationwide. To further buttress this point,
the 108 instances of section 213 usage between April 1, 2003,
and January 31, 2005, occurred in 40 different offices. And
of those 40 offices, 17 used section 213 only once. Looking
at it from another perspective over a longer time frame, 48
U.S. Attorneys' Offices--or slightly more than half--have
never sought court permission to execute a delayed-notice
search warrant in their districts since passage of the USA
PATRIOT Act.
To provide further detail for your consideration, of the
108 times authority to delay notice was sought between April
1, 2003, and January 31, 2005, in 92 instances ``seriously
jeopardizing an investigation'' (18 U.S.C. Sec. 2705(a)(2)(E)
was relied upon as a justification for the application. And
in at least 28 instances, jeopardizing the investigation was
the sole ground for seeking court approval to delay
notification, including Operation Candy Box described above.
It is important to note that under S. 1709, the ``SAFE Act,''
which was introduced in the 108th Congress, this ground for
delaying notice would be eliminated. Other grounds for
seeking delayed-notice search warrants were relied on as
follows: 18 U.S.C. Sec. 2705(a)(2)(A) (danger to life or
physical safety of an individual) was cited 23 times; 18
U.S.C. Sec. 2705(a)(2)(B) (flight from prosecution) was cited
45 times; 18 U.S.C. Sec. 2705(a)(2)(C) (destruction or
tampering with evidence) was cited 61 times; and 18 U.S.C.
Sec. 2705(a)(2)(D) (intimidation of potential witnesses) was
cited 20 times. As is probably clear, in numerous
applications, U.S. Attorneys' Offices cited more than one
circumstance as justification for seeking court approval.
The bulk of uses have occurred in drug cases; but section
213 has also been used in many cases including terrorism,
identity fraud, alien smuggling, explosives and firearms
violations, and the sale of protected wildlife.
Members of the Senate Judiciary Committee have also been
concerned about delayed notification of seizures and have
requested more detailed explanation of the number of times
seizures have been made pursuant to delayed-notice warrants.
The Department is pleased to provide the following
information.
Seizures can be made only after receiving approval of a
Federal judge that the government has probable cause to
believe the property or material to be seized constitutes
evidence of a criminal offense and that there is reasonable
necessity for the seizure. (See 18 U.S.C. Sec. 3103a(b)(2)).
According to the same survey of all U.S. Attorneys' Offices,
the Department has asked a court to find reasonable necessity
for a seizure in connection with delayed-notice searches 45
times between April 1, 2003, and January 31, 2005. In each
instance in which we have sought authorization from a court
during this same time frame, the court has granted the
request. Therefore, from the time of the passage of the USA
PATRIOT Act through January 31, 2005, the Department
exercised this authority 59 times. We previously, in May
2003, advised Congress that we had made 15 requests for
seizures, one of which was denied. In total, since the
passage of the USA PATRIOT Act, the Department has therefore
requested court approval to make a seizure and delay
notification 60 times. Most commonly, these requests related
to the seizure of illegal drugs. Such seizures were deemed
necessary to prevent these drugs from being distributed
because they are inherently dangerous to members of the
community. Other seizures have been authorized pursuant to
delayed-notice search warrants so that explosive material and
the operability of gun components could be tested, other
relevant evidence could be copied so that it would not be
lost if destroyed, and a GPS tracking device could be placed
on a vehicle. In short, the Department has sought seizure
authority only when reasonably necessary.
The length of the delay in providing notice of the
execution of a warrant has a1so received significant
attention from Members of Congress. The range of delay must
be decided on a case-by-case basis and is always dictated by
the approving judge or magistrate. According to the survey of
the 94 U.S. Attorneys' Offices, between April 1, 2003 and
January 31, 2005, the shortest period of time for which the
government has requested delayed-notice of a search warrant
was 7 days. The longest such specific period was 180 days;
the longest unspecified period was until ``further order of
the court'' or until the end of the investigation. An
unspecified period of time for delay was granted for six
warrants (four of these were related to the same case). While
no court has ever rejected the government's request for a
delay, in a few cases courts have granted a shorter time
frame than the period originally requested. For example, in
one case, the U.S. Attorney for the District of Arizona
sought a delay of 30 days, and the court authorized a shorter
delay of 25 days.
Of the 40 U.S. Attorneys' Offices that exercised the
authority to seek delayed-notice search warrants between
April 1, 2003, and January 31, 2005, just over half (22) of
the offices sought extensions of delays. Those 22 offices
together made approximately 98 appearances to seek additional
extensions. In certain cases, it was necessary for the
Offices to return to court on multiple occasions with respect
to the same warrant. One case bears note. The U.S. Attorney
in the Southern District of Illinois sought and received
approval to delay notification based on the fifth category of
adverse result--that immediate notification would seriously
jeopardize the investigation. The length of the delay granted
by the court was 7 days. However, the notification could not
be made within 7 days and the office was required to seek 31
extensions. So, each week for almost eight straight months,
the case agent was made to swear out an affidavit, and the
Assistant United States Attorney (AUSA) then had to reappear
before the judge or magistrate to renew the delay of notice.
In the vast majority of instances reported by the U.S.
Attorneys' Offices, original delays were sought for between
30 to 90 days. It is not surprising that our U.S. Attorneys'
Offices are requesting up to 90-day delays. Ninety days is
the statutory allowance under Title III for notification of
interception of wire or electronic communications (see 18
U.S.C. 2518(8)(d). In only one instance did a U.S. Attorney's
Office seek a delay of a specified period of time longer than
90 days (180 days), and the court granted this request. In
another instance, an office sought a 90-day delay period, and
the court granted 180 days. In seven instances, the
Department sought delays that would last until the end of the
investigation. In only once instance was such a request
modified. In that matter, the court originally granted a 30-
day delay. However, when notification could not be made
within 30 days, the U.S. Attorney's Office returned to the
judge for an extension, and the judge granted an extension
through the end of the investigation, for a total of 406
days. This is, according to our survey, the longest total
delay a court authorized. However, most extensions were
sought and granted for the same period as the original delay
requested.
In one case, a court denied a U.S. Attorney's Office's
request for an extension of the delay in providing notice.
This matter involved three delayed-notice search warrants--
all-stemming from the same investigation. The original period
of delay sought and granted was for 30 days on all three
warrants. The Office then sought 30-day extensions on all
three warrants out of concern that the multiple targets of
the investigation might flee to a foreign country if
notifie.d The court denied our request. The judge in the
matter reasoned that the need to delay notification warranted
only a 30-day stay of service, particularly in light of the
[[Page S8227]]
fact that one of the targets of the investigation was, by
this time, in Federal custody in California on an unrelated
matter. At some point after notification was made, however,
the other targets fled to Mexico.
In sum, both before enactment of section 213 and after,
immediate notice that a search warrant had been executed has
been standard procedure. Delayed-notice search warrants have
been used for decades by law enforcement and, as demonstrated
by the numbers provided above, delayed-notice warrants are
used infrequently and scrupulously--only in appropriate
situations where immediate notice likely would harm
individuals or compromise investigations, and even then only
with a judge's express approval. The investigators and
prosecutors on the front lines of fighting crime and
terrorism should not be forced to choose between preventing
immediate harm--such as a terrorist attack or an influx of
illegal drugs--and completing a sensitive investigation that
might shut down an entire terror cell or drug trafficking
operation. Thanks to the long-standing availability of
delayed-notice warrants in these circumstances, they do not
have to make that choice. Section 213 enables us to better
protect the public from terrorists and criminals while
preserving Americans constitutional rights.
As you may be aware, the Department published a detailed
report last year that includes numerous additional examples
of how delaying notification of search warrants in certain
circumstances resulted in beneficial results. We have
enclosed a copy for your convenience.
If we can be of further assistance regarding this or any
other matter, please do not hesitate to contact this office.
Sincerely,
William E. Moschella,
Assistant Attorney General.
____
Department of Justice,
Office of Legislative Affairs,
Washington, DC, May 3, 2005.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: During the closed session of the Senate
Judiciary Committee on April 12, 2005, you requested
additional information regarding Section 213 of the USA
PATRIOT Act. Specifically, you inquired about examples of
where the ``seriously jeopardizing an investigation'' prong
was the sole ``adverse result'' used to request delayed
notice. In addition to Operation Candy Box, which was
detailed in our April 4, 2005, letter to the Committee, we
have described seven additional cases below. It is important
to note that the twenty-eight instances cited in our April 4
letter do not equate to twenty-eight investigations or cases.
For example, some of the cases that used delayed-notice
search warrants utilizing the ``seriously jeopardize'' prong
involved multiple search warrants.
As we are sure you will agree, the following examples of
the use of delayed-notice search warrants illustrate not only
the appropriateness of the Department's use of this important
tool, but also its criticality to law enforcement
investigations.
Example #1: Western District of Pennsylvania:
The Justice Department obtained a delayed-notice search
warrant for a Federal Express package that contained
counterfeit credit cards. At the time of the search, it was
very important not to disclose the existence of a federal
investigation, as this would have revealed and endangered a
related Title III wiretap that was ongoing for major drug
trafficking activities. Originally, the Department was
granted a ten-day delay by the court; but the Department
sought and was granted eight extensions before notice could
be made.
An Organized Crime Drug Enforcement Task Force
(``OCDETF''), which included agents from the Drug Enforcement
Administration (DEA), the Internal Revenue Service, and the
Pittsburgh Police Department, as well as from other state and
local law enforcement agencies, was engaged in a multi-year
investigation that culminated in the indictment of the
largest trafficking organization ever prosecuted in the
Western District of Pennsylvania. The organization was headed
by Oliver Beasley and Donald ``The Chief'' Lyles. A total of
fifty-one defendants were indicted on drug, money laundering
and firearms charges. Beasley and Lyles were charged with
operating a Continuing Criminal Enterprise as the leaders of
the organization. Both pleaded guilty and received very
lengthy sentences of imprisonment.
The Beasley/Lyle organization was responsible for bringing
thousands of kilograms of cocaine and heroin into Western
Pennsylvania. Cooperation was obtained from selected
defendants and their cooperation was used to obtain
indictments against individuals in New York who supplied the
heroin and cocaine. Thousands of dollars in real estate,
automobiles, jewelry and cash have been forfeited.
The case had a discernible and positive impact upon the
North Side of Pittsburgh, where the organization was based.
The DEA reported that the availability of heroin and cocaine
in this region decreased as the result of the successful
elimination of this major drug trafficking organization. In
addition, heroin overdose deaths in Allegheny County declined
from 138 in 2001 to 46 in 2003.
While the drug investigation was ongoing, it became clear
that several leaders of the drug conspiracy had ties to an
ongoing credit card fraud operation. An investigation into
the credit card fraud was undertaken, and a search was made
of a Fed Ex package that contained fraudulent credit cards.
Had the search into the credit card fraud investigation
revealed the ongoing drug investigation prematurely, the drug
investigation could have been seriously jeopardized. The
credit card investigation ultimately resulted in several
cases including US v. Larry Goolsby, Sandra Young (Cr. No.
02-74); US v. Lasaun Beeman, Derinda Daniels, Anna Holland,
Darryl Livsey and Kevin Livsey (Cr. No. 03-43); US v. Gayle
Charles (Cr. No. 03-77); US v. Scott Zimmerman, Lloyd Foster
(Cr. No. 03-44). All of the defendants charged with credit
card fraud were convicted except one, Lloyd Foster, who was
acquitted at trial. These cases have now concluded.
Example #2: Western District of Texas:
The Justice Department executed three delayed notice
searches as part of an OCDETF investigation of a major drug
trafficking ring that operated in the Western and Northern
Districts of Texas. The investigation lasted a little over a
year and employed a wide variety of electronic surveillance
techniques such as tracking devices and wiretaps of cell
phones used by the leadership. The original delay approved by
the court in this case was for 60 days. The Department sought
two extensions, one for 60 days and one for 90 days both of
which were approved.
During the wiretaps, three delayed-notice search warrants
were executed at the organization's stash houses. The search
warrants were based primarily on evidence developed as a
result of the wiretaps. Pursuant to section 213 of the USA
PATRIOT Act, the court allowed the investigating agency to
delay the notifications of these search warrants. Without
the ability to delay notification, the Department would
have faced two choices: (1) seize the drugs and be
required to notify the criminals of the existence of the
wiretaps and thereby end our ability to build a
significant case on the leadership or (2) not seize the
drugs and allow the organization to continue to sell them
in the community as we continued with the investigation.
Because of the availability of delayed-notice search
warrants, the Department was not forced to make this
choice. Agents seized the drugs, continued our
investigation, and listened to incriminating conversations
as the dealers tried to figure out what had happened to
their drugs.
On March 16, 2005, a grand jury returned an indictment
charging twenty-one individuals with conspiracy to
manufacture, distribute, and possess with intent to
distribute more than 50 grams of cocaine base. Nineteen of
the defendants, including all of the leadership, are in
custody. All of the search warrants have been unsealed, and
it is anticipated that the trial will be set sometime within
the next few months.
Example #3: District of Connecticut:
The Justice Department used section 213 of the USA PATRIOT
Act in three instances to avoid jeopardizing the integrity of
a pending federal investigation into a Connecticut drug
trafficking organization's distribution of cocaine base and
cocaine. The provision was used to place a global positioning
device on three vehicles.
These applications were submitted in the case of United
States v. Julius Moorning, et al. That case was indicted at
the end of April 2004, and 48 of 49 individuals charged have
been arrested. As of this date, 38 of the defendants have
entered guilty pleas, and several more are being scheduled.
The trial of the remaining defendants is scheduled to begin
on July 15. All defendants with standing to challenge any of
the orders obtained have entered guilty pleas.
The Justice Department believed that if the targets of the
investigation were notified of our use of the GPS devices and
our monitoring of them, the purpose of the use of this
investigative tool would be defeated, and the investigation
would be totally compromised. As it was, the principals in
the targeted drug-trafficking organization were highly
surveillance-conscious, and reacted noticeably to perceived
surveillance efforts by law enforcement. Had they received
palpable confirmation of the existence of an ongoing federal
criminal investigation, the Justice Department believed they
would have ceased their activities, or altered their methods
to an extent that would have required us to begin the
investigation anew.
In each instance, the period of delay requested and granted
was 90 days, and no renewals of the delay orders were sought.
And, as required by law, the interested parties were made
aware of the intrusions resulting from the execution of the
warrants within the 90 day period authorized by the court.
Example #4: Western District of Washington:
During an investigation of a drug trafficking organization,
which was distributing cocaine and an unusually pure
methamphetamine known as ``ice,'' a 30-day delayed-notice
search warrant was sought in April 2004. As a result of
information obtained through a wiretap as well as a drug-
sniffing dog, investigators believed that the leader of the
drug distribution organization was storing drugs and currency
in a storage locker in Everett, Washington. The warrant was
executed, and while no drugs or cash was found, an assault
rifle and ammunition were discovered. Delayed notice of the
search warrant's execution was necessary in order to protect
the integrity of other investigative techniques being used in
the case, such as a wiretap. The investigation ultimately led
to the indictment of twenty-seven individuals in
[[Page S8228]]
the methamphetamine conspiracy. Twenty-three individuals,
including the leader, have pled guilty, three are fugitives,
and one is awaiting trial.
Example #5: Southern District of Illinois:
The Justice Department used section 213 of the USA PATRIOT
Act in an investigation into a marijuana distribution
conspiracy in the Southern District of Illinois. In
particular, in November 2003, a vehicle was seized pursuant
to authority granted under the provision.
During this investigation, a Title III wiretap was obtained
for the telephone of one of the leaders of the organization.
As a result of intercepted telephone calls and surveillance
conducted by DEA, it was learned that a load of marijuana was
being brought into Illinois from Texas. Agents were able to
identify the vehicle used to transport the marijuana. DEA
then located the vehicle at a motel in the Southern District
of Illinois and developed sufficient probable cause to apply
for a warrant to search the vehicle. It was believed,
however, that immediate notification of the search warrant
would disclose the existence of the investigation, resulting
in, among other things, phones being ``dumped'' and targets
ceasing their activities, thereby jeopardizing potential
success of the wiretaps and compromising the overall
investigation (as well as related investigations in other
districts). At the same time it was important, for the safety
of the community, to keep the marijuana from being
distributed.
The court approved the Department's application for a
warrant to seize the vehicle and to delay notification of the
execution of the search warrant for a period of seven days,
unless extended by the Court. With this authority, the agents
seized the vehicle in question (making it appear that the
vehicle had been stolen) and then searched it following the
seizure. Approximately 96 kilograms of marijuana were
recovered in the search. Thirty one seven-day extensions to
delay notice were subsequently sought and granted due to
the ongoing investigation.
As a result of this investigation, ten defendants were
ultimately charged in the Southern District of Illinois.
Seven of these defendants have pled guilty, and the remaining
three defendants are scheduled for jury trial beginning on
June 7, 2005.
Example #6: Eastern District of Wisconsin:
In a Wisconsin drug trafficking case, a delayed-notice
search warrant was issued under section 213 because immediate
notification would have seriously jeopardized the
investigation. In this case, the Department was in the final
stages of a two-year investigation, pre-takedown of several
individuals involved in the trafficking of cocaine. The
Department initially received a delayed-notice search warrant
for seven days, and thereafter received three separate seven-
day extensions. For each request, the Department showed a
particularized need that providing notice that federal
investigators had entered the home being searched would
compromise the informant and the investigation.
On February 14, 2004, the United States Attorney's Office
for the Eastern District of Wisconsin requested a search
warrant to look for evidence of assets, especially bank
accounts, at a suspect's residence as well as to attach an
electronic tracking device on a vehicle investigators
expected to find in the garage. The purpose of the device
would be to track the suspect and observe his meetings in the
final weeks before the takedown. The warrant also requested
delayed notice, based on the particularized showing that
providing notice that federal investigators had entered the
home would compromise an informant and the investigation. The
court issued the search warrant and granted the delayed
notification for a period of seven days. On February 15,
2004, authorized officers of the United States executed the
search warrant on the subject premises. However, agents were
unable to locate the vehicle to install the electronic
tracking device.
Before the expiration of the initial delayed-notice period,
the Department sought an extension of the delay based on the
showing that notice would compromise the informant and the
investigation. The court granted a seven-day extension, but
investigators were still unable to locate the suspect's
vehicle during this time. During this period, however, five
suspects were charged with conspiring to possess more than
five kilograms of cocaine, and arrest warrants were issued
for each of the individuals.
After the issuance of the arrest warrants, the Department
sought its third delay of notice to allow agents to endeavor
to install the electronic tracking device and to attempt to
locate the five suspects. Once again, the request was based
on the showing that notice would compromise the informant and
the investigation. The court granted another seven-day
extension, and agents were able to find a location where one
suspect appeared to be staying. After locating the suspect,
and before the expiration of the delayed-notice period, the
government requested a separate warrant for this location and
for other locations used by the conspirators. The Department
also requested its fourth and final delay in the notice
period to allow agents to execute the search warrants sought,
and to arrest the suspects. The court granted all requests
and the suspects were subsequently arrested. As required by
law, notice of the searches was given upon arrest.
Example #7: Eastern District of Washington:
In a drug trafficking and money laundering case in the
State of Washington, a delayed-notice search warrant was
issued under section 213 because immediate notification would
have seriously jeopardized the investigation. In this case, a
district judge had authorized the interception of wire and
electronic communications occurring over four cellular
telephones that were being used in furtherance of drug
trafficking and/or money laundering activities. On December
18, 2004, more than one month after the Drug Enforcement
Administration (DEA) began surveillance, DEA agents
administratively seized a black Ford Focus owned by one of
the suspects based on the determination that the vehicle
likely contained controlled substances.
On December 21, 2004, the DEA requested a warrant to search
the seized vehicle for drugs, and the court issued the
warrant based on the DEA's articulation of probable cause. On
the same day, the search warrant was executed on the
suspect's vehicle, which was still in the DEA's possession
pursuant to the administrative seizure. During the search,
agents located approximately two kilograms of suspected
cocaine and three pounds of suspected methamphetamine. At the
time, the service copy of the search warrant was ``served''
on the vehicle.
Due to the nature of the investigation, which included the
orders authorizing the interception of wire and electronic
communications to and from a number of cellular telephones,
the DEA believed that both the continued administrative
seizure of the vehicle and notice of the execution of the
search warrant would greatly compromise the investigation.
Therefore, the DEA requested an order allowing them to remove
the served copy of the warrant from the vehicle, and delay
notice to the owner for sixty days in order to avoid
jeopardizing the ongoing criminal investigation. The court
granted the order, concluding that immediate notification
would compromise a major drug trafficking and money
laundering investigation.
Approximately twenty-five individuals have been indicted as
a result of this investigation (eight of whom are still
fugitives), and trial is scheduled for this October.
In closing, the Department of Justice believes it is
critical that law enforcement continue to have this vital
tool for those limited circumstances, such as those discussed
above, where a court finds good cause to permit the temporary
delay of notification of a search.
We hope the information provided above is helpful. Should
you require any further information, please do not hesitate
to contact this office.
Sincerely,
William E. Moschella,
Assistant Attorney General.
____
Department of Justice,
Office of Legislative Affairs,
Washington, DC, June 28, 2005.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter responds to your request for
more information regarding the use of section 213 of the USA
PATRIOT Act (``the Act''), which relates to delayed-notice
search warrants. The Department of Justice has provided the
Senate Judiciary Committee two letters detailing the specific
usage of delayed-notice search warrants. Those letters were
sent to the Committee on April 4, 2005, and May 3, 2005,
respectively. This letter is intended to supplement the
previous information we have already provided the Committee.
As you know, the Department believes very strongly that
section 213 is an invaluable tool in the war on terror and
our efforts to combat serious criminal conduct. In passing
the USA PATRIOT Act, Congress recognized that delayed-notice
search warrants are a vital aspect of the Department's
strategy of prevention: detecting and incapacitating
terrorists, drug dealers and other criminals before they can
harm our nation. Codified at 18 U.S.C. Sec. 3103a, section
213 of the Act created an explicit statutory authority for
investigators and prosecutors to ask a court for permission
to delay notice temporarily that a search warrant was
executed.
Delayed-notice search warrants have been used by law
enforcement officers for decades. Such warrants were not
created by the USA PATRIOT Act. Rather, the Act simply
codified a common-law practice recognized by courts across
the country. Section 213 simply established a uniform
nationwide standard for the issuance of those warrants, thus
ensuring that delayed-notice search warrants are evaluated
under the same criteria across the nation. Like any other
search warrant, a delayed-notice search warrant is issued by
a federal judge only upon a showing that there is probable
cause to believe that the property to be searched for or
seized constitutes evidence of a criminal offense. A delayed-
notice warrant differs from an ordinary search warrant only
in that the judge specifically authorizes the law enforcement
officers executing the warrant to wait for a limited period
of time before notifying the subject of the search that a
search was executed.
In addition, investigators and prosecutors seeking a
judge's approval to delay notification must show that, if
notification were made contemporaneous to the search, there
is reasonable cause to believe one of the following adverse
results might occur: (1) notification would endanger the life
or physical safety of an individual; (2) notification would
cause flight from prosecution; (3) notification would result
in destruction of, or tampering with, evidence; (4)
notification would result in intimidation of potential
witnesses;
[[Page S8229]]
or (5) notification would cause serious jeopardy to an
investigation or unduly delay a trial.
To be clear, it is only in these five tailored
circumstances that the Department may request judicial
approval to delay notification, and a federal judge must
agree with the Department's evaluation before approving any
delay.
Delayed-notice search warrants provide a crucial option to
law enforcement. If immediate notification were required
regardless of the circumstances, law enforcement officials
would be too often forced into making a ``Hobson's choice'':
delaying the urgent need to conduct a search and/or seizure
or conducting the search and prematurely notifying the target
of the existence of law enforcement interest in his or her
illegal conduct and undermine the equally pressing need to
keep the ongoing investigation confidential.
It is important to stress that in all circumstances the
subject of a criminal search warrant is informed of the
search. It is simply false to suggest, as some have, that
delayed-notice search warrants allow the government to search
an individual's ``houses, papers, and effects'' without
notifying them of the search. In every case where the
government executes a criminal search warrant, including
those issued pursuant to section 213, the subject of the
search is told of the search. With respect to delayed-notice
search warrants, such notice is simply delayed for a
reasonable period of time--a time period defined by a federal
judge.
Delayed-notice search warrants are constitutional and do
not violate the Fourth Amendment. The U.S. Supreme Court
expressly held in Dalia v. United States that the Fourth
Amendment does not require law enforcement to give immediate
notice of the execution of a search warrant. Since Dalia,
three federal courts of appeals have considered the
constitutionality of delayed-notice search warrants, and all
three have upheld their constitutionality. To our knowledge,
no court has ever held otherwise. In short, long before the
enactment of the USA PATRIOT Act, it was clear that delayed
notification was appropriate in certain circumstances; that
remains true today. The USA PATRIOT Act simply resolved the
mix of inconsistent rules, practices and court decisions
varying from circuit to circuit. Therefore, section 213 had
the beneficial impact of mandating uniform and equitable
application of the authority across the nation.
The Department has provided the Committee with detailed
information regarding how often section 213 has been used.
Let us assure you again that the use of a delayed-notice
search warrant is the exception, not the rule. Law
enforcement agents and investigators provide immediate notice
of a search warrant's execution in the vast majority of
cases. According to Administrative Office of the U.S. Courts
(AOUSC), during the 36-month period ending September 30,
2004, U.S. District Courts handled 95,925 search warrants. By
contrast, in the 39-month period between the passage of the
USA PATRIOT Act and January 31, 2005, the Department used the
section 213 authority only 153 times according to a
Department survey. Even when compared to the AOUSC data for a
shorter period of time, the 153 uses of section 213 still
only account for less than 0.2% of the total search warrants
handled by the courts.
Specifically, you have inquired about examples of where the
``seriously jeopardizing an investigation'' prong was the
sole ``adverse result'' used to request delayed notice. From
April 1, 2003, to January 31, 2005, the ``seriously
jeopardizing an investigation'' prong has been the sole
ground for requesting delayed notice in thirty-two instances.
Contrary to concerns expressed by some, this prong is not a
``catch-all'' that is used in run-of-the-mill cases. The
Department estimates that fewer than one in 500 of the search
warrants that have been obtained since the passage of the
PATRIOT Act have been delayed-notice search warrants. In
other words, in over 499 of 500 cases, immediate notice was
provided. Moreover, fewer than one in three delayed-notice
search warrants obtained by the Department in the last two
years solely relied on the fact that immediate notification
would seriously jeopardize an investigation. Thus, fewer than
one in 1,500 search warrants relied solely on this prong, a
fact hardly consistent with the concern that the Department
will obtain a delayed-notice search warrant in the typical
case.
Of those thirty-two instances, delayed-notice search
warrants were used in a total of twenty-two investigations.
The thirty-two instances do not equate to thirty-two
investigations or cases because some of the cases that used
delayed-notice search warrants utilizing the ``seriously
jeopardize'' prong involved multiple search warrants. The
Department of Justice has provided the Committee detailed
descriptions of eight of the twenty-two investigations where
the ``seriously jeopardizing an investigation'' prong was the
sole ``adverse result'' used to request delayed notice. The
descriptions already provided include Operation Candy Box,
which was detailed in our April 4, 2005, letter to the
Committee, and seven additional cases described in a May 3,
2005 letter to the Committee. This letter is intended to
supplement the previous information we have provided by
detailing the seven remaining investigations that have been
unsealed, and identifying the seven remaining investigations
that are currently sealed. Two of the seven investigations
that remain under seal are terrorism-related.
As we are sure you will agree, the following examples of
the use of delayed-notice search warrants illustrate not only
the appropriateness of the Department's use of this vital
tool, but also its importance to law enforcement
investigations.
Example #9: Southern District of Illinois:
The United States Attorney's Office for the Southern
District of Illinois used a delayed-notice search warrant
pursuant to Title 18 U.S.C. Sec. 3103a in the investigation
of an OCDETF (Organized Crime Drug Enforcement Task Force)
case. Although the Southern District of Illinois handled the
investigation, the search warrant application was filed by
the United States Attorney's Office in the Eastern District
of Missouri because the apartment to be searched was located
there. The search warrant was sought because a Title III
wiretap revealed that the house to be searched was being used
as a safehouse for those trafficking in drugs, and it was
believed that the notification of the search warrant would
seriously jeopardize the ongoing investigation into the drug
organization and its numerous members and frustrate the
identification of additional sources of supply. The search
warrant was issued by a Magistrate Judge in the Eastern
District of Missouri on April 6, 2004, for a period of 7
days. No extensions were requested or authorized. The case
was indicted on November 18, 2004. One defendant has pled
guilty and thirteen defendants are awaiting trial.
Example #10: Northern District of Georgia:
The United States Attorney's Office for the Northern
District of Georgia used section 213 in a drug investigation
to delay notice of three search warrants in three locations.
A Title III wiretap had revealed that a drug dealer had three
stash locations, and the United States Attorney's Office
wanted to search those locations without tipping off the drug
dealers. A federal judge approved three delayed-notice search
warrants that yielded several kilos of cocaine, pounds of
ICE, a very pure form of methamphetamine, and firearms. The
agents were also able to photograph documentary evidence such
as ledgers. The use of the delayed-notice search warrant was
successful in cementing the case against the defendant, who
was indicted in April 2005.
Example #11: Northern District of Georgia:
The United States Attorney's Office for the Northern
District of Georgia also used section 213 in another drug
investigation. The DEA had obtained court approval to install
and monitor wiretaps of several cellular phones used by high-
level members of a Mexican cocaine and methamphetamine
distribution cell operating in Atlanta. While monitoring the
phones, the targets' conversations showed that they were
delivering 100 kilograms of cocaine to a purchaser.
Surveillance identified one of the stash houses from which
the targets obtained 14 kilograms of the cocaine, and the
conversations indicated that more of the cocaine was located
in the stash house. At that time, however, the investigation
and interceptions on the cell phones had not identified the
highest-level members of the cell, so the agents were not in
a position to make arrests and take down the organization.
The agents therefore needed to seize the cocaine while trying
to minimize the chances that the seizure would cause the
targets to cease usage of their cellular phones.
Investigators decided it was appropriate to seek a
delayed-notice warrant that would allow them access to the
stash house. A federal judge approved the warrant that
resulted in the seizure of 36 kilograms of cocaine, some
methamphetamines, and two weapons including a sawed-off
shotgun, without having to leave a copy of the warrant and
provide confirmation to the targets that they were being
watched by law enforcement. Since the subsequent arrests
of sixteen individuals for various drug-trafficking
charges in this investigation, two have pled guilty, three
have been sentenced, five are set for sentencing and six
are currently awaiting trial.
Example #12: Western District of New York:
Operation Trifecta was a Title III wiretap investigation
being conducted in the United States Attorney's Office for
the Southern District of New York, the Western District of
New York (WDNY OCDETF Operation Next of Kin) as well as in
U.S. Attorney's Offices in California, Ohio, and Arizona and
by law enforcement authorities in Mexico. As part of this
multi-district and international investigation, Title III
wiretap orders were obtained in each of the jurisdictions
involved in the investigation. In May 2003, information was
received as a result of a Title III interception order that
the targets of the investigation were arranging the
transportation of a vehicle (``load vehicle'') that was
believed to conceal a substantial quantity of cocaine by
transporting it on a car carrier. Once it was determined that
the car carrier would transport the load vehicle through the
Western District of New York, an application was made to
search the load vehicle. The magistrate judge that issued the
warrant also authorized delay in giving notice of the
execution of the search warrant pursuant to section 213 of
the USA PATRIOT Act.
Once the car carrier transporting the load vehicle arrived
in the Western District of New York, a local Sheriff's
Department deputy executed a traffic stop. It was discovered
that the VIN plate on the dashboard of the load vehicle
appeared to have been tampered with or replaced. As a result
of the suspect VIN plate, the load vehicle was removed
[[Page S8230]]
from the car carrier, impounded and the car carrier was
allowed to proceed on its way. Thereafter, a delayed-notice
search warrant was executed on the load vehicle, resulting in
37 kilograms of cocaine being seized from it. After the
seizure of the load vehicle, conversations regarding efforts
to re-obtain the load vehicle were intercepted between the
subjects of the investigation. These efforts continued until
July 30, 2003, which was the takedown date for all aspects of
the investigation. Extensions of the order delaying notice
were obtained until the takedown date. Until they were
arrested, the subjects of the investigation were completely
unaware as to the actual reason why the load vehicle was
seized, and that the cocaine secreted in the load vehicle had
been located.
Obviously, had the subjects of the investigation received
notice that a search warrant had been obtained for the load
vehicle, this investigation would have been seriously
compromised. Delayed notice allowed the investigating
agencies to make a significant seizure of cocaine while at
the same time allowing the investigation, which had national
and international ramifications, to continue to its
successful conclusion. Twenty defendants were charged in the
Western District of New York, and all have pled guilty.
Example #13: Western District of New York:
As a result of investigations in the Western District of
New York, the Eastern District of California, and Canada,
including wiretaps in all three locations, information was
obtained that several defendants were involved in smuggling
large quantities of ephedrine, a listed chemical, from Canada
into the United States. There were four delayed-notice search
warrants issued in the case, which were all justified by the
``seriously jeopardizing an investigation'' prong only; two
for premises that were believed to be ``stash houses'' for
ephedrine and money; and two for packages sent through the
U.S. and Canadian mail which were believed to also contain
contraband. All delayed-notice search warrants were issued
for 10 days on the grounds that providing notice would
adversely affect the investigation of this multi-district
case in that the Canadian wiretaps were still up, and a
series of arrests were planned for the week following the
search in a related drug case in the Eastern District of
California. The prosecution in this case is currently
pending.
Example #14: Western District of New York:
A delayed-notice search warrant was obtained for the
District of Maryland to open and photograph the contents of a
safe deposit box that the target, a Canadian citizen, was
allegedly using to store his proceeds of drug trafficking.
Following the sale of heroin by the target to undercover law
enforcement in Maryland, the target was followed back to the
U.S./Canada border and observed going to a bank in Niagara
Falls, New York before entering Canada. A search warrant was
obtained for the safe deposit box, and the money (identified
through prerecorded serial numbers) from the purchase of the
drugs was found in the box. The contents were photographed
but not seized. The notification was delayed until arrests
could be made in the case--a period of six months. This
target is currently a fugitive while other subjects of the
investigation were arrested in August 2003.
Example #15: Western District of Michigan:
The defendant in United States v. Eason was charged on
numerous drug-trafficking counts in indictments returned in
1995 and 1996, and was a fugitive until his arrest in July
2004. While the defendant was incarcerated and his case was
pending, information was discovered that the defendant was
corresponding with associates and family members through the
mail at the Kalamazoo County Jail in an attempt to intimidate
witnesses, obstruct justice or even contract for the murder
of a federal prosecutor. It was determined that the only way
to effectively obtain information about these threats was to
use a delayed-notice search warrant, which allowed agents to
copy the defendant's ingoing and outgoing mail and envelopes,
reseal the mail, and then forward the mail to the intended
recipient. The judge determined that notifying the defendant
of these actions would have seriously jeopardized the
investigation. Additional information concerning the
underlying threat investigation cannot be disclosed at this
time. The defendant was convicted on January 18, 2005 on
numerous drug-trafficking counts and faces a statutory range
of 20 years to life. His advisory United States Sentencing
Guideline range is life imprisonment.
Example #16: District of Maryland--Sealed.
Example #17: Northern District of Georgia--Sealed.
Example #18: Southern District of Iowa--Sealed. Two
delayed-notice search warrants were issued in this
investigation.
Example #19: Southern District of Ohio--Sealed.
Example #20: Southern District of Ohio--Sealed.
Example #21: Southern District of Texas--Sealed.
Example #22: Western District of New York--Sealed.
In sum, delayed-notice search warrants have been used for
decades by law enforcement and, as demonstrated by the
numbers and examples provided above, delayed-notice warrants
are used infrequently and scrupulously--only in appropriate
situations where immediate notice likely would harm
individuals or compromise investigations, and even then only
with a judge's express approval. The investigators and
prosecutors on the front lines of fighting crime and
terrorism should not be forced to choose between preventing
immediate harm--such as a terrorist attack or an influx of
illegal drugs--and completing a sensitive investigation that
might shut down an entire terror cell or drug trafficking
operation. Thanks to the long-standing availability of
delayed-notice warrants in these circumstances, they do not
have to make that choice. Section 213 enables us to better
protect the public from terrorists and criminals while
preserving Americans constitutional rights. The Department of
Justice believes it is critical that law enforcement continue
to have this vital tool for those limited circumstances, such
as those discussed above, where a court finds good cause to
permit the temporary delay of notification of a search.
We hope the information provided above is helpful. Should
you require any further information, please do not hesitate
to contact this office.
Sincerely,
William E. Moschella,
Assistant Attorney General.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1389
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``USA
PATRIOT Improvement and Reauthorization Act of 2005''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Patriot section 203; notice to court of disclosure of foreign
intelligence information.
Sec. 3. Patriot section 206; additional requirements for multipoint
electronic surveillance under FISA.
Sec. 4. Patriot section 207; duration of FISA surveillance of non-
United States persons.
Sec. 5. Patriot section 212; enhanced oversight of good-faith emergency
disclosures.
Sec. 6. Patriot section 213; limitations on delayed notice search
warrants.
Sec. 7. Patriot section 214; factual basis for pen register and trap
and trace authority under FISA.
Sec. 8. Patriot section 215; procedural protections for court orders to
produce records and other items in intelligence
investigations.
Sec. 9. Patriot section 505; procedural protections for national
security letters.
Sec. 10. Sunset provisions.
Sec. 11. Enhancement of sunshine provisions.
SEC. 2. PATRIOT SECTION 203; NOTICE TO COURT OF DISCLOSURE OF
FOREIGN INTELLIGENCE INFORMATION.
Section 2517 of title 18, United States Code, is amended by
adding at the end the following:
``(9) Within a reasonable time after disclosure is made,
pursuant to paragraph (6), (7), or (8), of the contents of
any wire, oral, or electronic communication, an attorney for
the Government must file, under seal, a notice with the judge
that issued the order authorizing or approving the
interception of such wire, oral, or electronic communication,
stating that such contents or evidence was disclosed and the
departments, agencies, or entities to which the disclosure
was made.''.
SEC. 3. PATRIOT SECTION 206; ADDITIONAL REQUIREMENTS FOR
MULTIPOINT ELECTRONIC SURVEILLANCE UNDER FISA.
(a) Particularity Requirement.--Section 105(c)(1)(A) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805(c)(1)(A)) is amended by inserting before the semicolon
at the end the following: ``, and if the nature and location
of each of the facilities or places at which the surveillance
will be directed is not known, and if the identity of the
target is not known, the order shall include sufficient
information to describe a specific target with
particularity''.
(b) Additional Directions.--Section 105(c) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)) is
amended--
(1) by striking ``An order approving an electronic
surveillance under this section shall--'';
(2) in paragraph (1), by inserting before ``specify'' the
following: ``specifications.--An order approving an
electronic surveillance under this section shall'';
(3) in paragraph (1)(F), by striking ``; and'' and
inserting a period;
(4) in paragraph (2), by inserting before ``direct'' the
following: ``directions.--An order approving an electronic
surveillance under this section shall''; and
(5) by adding at the end the following:
``(3) Special directions for certain orders.--An order
approving an electronic surveillance under this section in
circumstances where the nature and location of each of the
facilities or places at which the surveillance will be
directed is unknown shall direct the applicant to provide
notice to the court
[[Page S8231]]
within 10 days after the date on which surveillance begins to
be directed at any new facility or place of--
``(A) the nature and location of each facility or place at
which the electronic surveillance is directed;
``(B) the facts and circumstances relied upon by the
applicant to justify the applicant's belief that each
facility or place at which the electronic surveillance is
directed is being used, or is about to be used, by the target
of the surveillance; and
``(C) a statement of any proposed minimization procedures
that differ from those contained in the original application
or order, that may be necessitated by a change in the
facility or place at which the electronic surveillance is
directed.''.
(c) Enhanced Oversight.--
(1) Report to congress.--Section 108(a)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)(1))
is amended by inserting ``, and the Committee on the
Judiciary of the House of Representatives and the Committee
on the Judiciary of the Senate,'' after ``Senate Select
Committee on Intelligence''.
(2) Modification of semiannual report requirement on
activities under foreign intelligence surveillance act of
1978.--Paragraph (2) of section 108(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)) is
amended to read as follows:
``(2) Each report under the first sentence of paragraph (1)
shall include a description of--
``(A) the total number of applications made for orders and
extensions of orders approving electronic surveillance under
this title where the nature and location of each facility or
place at which the electronic surveillance will be directed
is not known; and
``(B) each criminal case in which information acquired
under this Act has been authorized for use at trial during
the period covered by such report.''.
SEC. 4. PATRIOT SECTION 207; DURATION OF FISA SURVEILLANCE OF
NON-UNITED STATES PERSONS.
(a) Electronic Surveillance Orders.--Section 105(e) of the
Foreign Intelligence Surveillance Act (50 U.S.C. 1805(e)) is
amended--
(1) in paragraph (1)(B), by striking ``, as defined in
section 101(b)(1)(A)'' and inserting ``who is not a United
States person''; and
(2) in paragraph (2)(B), by striking ``as defined in
section 101(b)(1)(A)'' and inserting ``who is not a United
States person''.
(b) Physical Search Orders.--Section 304(d) of the Foreign
Intelligence Surveillance Act (50 U.S.C. 1824(d)) is
amended--
(1) in paragraph (1)(B), striking ``as defined in section
101(b)(1)(A)'' and inserting ``who is not a United States
person''; and
(2) in paragraph (2), striking ``as defined in section
101(b)(1)(A)'' and inserting ``who is not a United States
person''.
(c) Pen Registers.--Section 402(e) of the Foreign
Intelligence Surveillance Act (50 U.S.C. 1842(e)) is amended
by--
(1) inserting after ``90 days'' the first place it appears
the following: ``, except that in cases where the applicant
has certified that the information likely to be obtained is
foreign intelligence information not concerning a United
States person, an order issued under this section may be for
a period not to exceed 1 year''; and
(2) by inserting after ``90 days'' the second place it
appears the following: ``, except that in cases where the
applicant has certified that the information likely to be
obtained is foreign intelligence information not concerning a
United States person, an extension of an order issued under
this section may be for a period not to exceed 1 year''.
SEC. 5. PATRIOT SECTION 212; ENHANCED OVERSIGHT OF GOOD-FAITH
EMERGENCY DISCLOSURES.
(a) Enhanced Oversight.--Section 2702 of title 18, United
States Code, is amended by adding at the end the following:
``(d) Reporting of Emergency Disclosures.--On an annual
basis, the Attorney General shall submit to the Committee on
the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate a report
containing--
``(1) the number of accounts from which the Department of
Justice has received voluntary disclosures under subsection
(b)(8); and
``(2) a summary of the basis for disclosure in those
instances where--
``(A) voluntary disclosures under subsection (b)(8) were
made to the Department of Justice; and
``(B) the investigation pertaining to those disclosures was
closed without the filing of criminal charges.''.
(b) Technical Amendments To Conform Communications and
Customer Records Exceptions.--
(1) Voluntary disclosures.--Section 2702 of title 18,
United States Code, is amended--
(A) in subsection (b)(8)--
(i) by striking ``Federal, State, or local''; and
(ii) by inserting ``immediate'' before ``danger''; and
(B) by striking subsection (c)(4) and inserting the
following:
``(4) to a governmental entity, if the provider, in good
faith, believes that an emergency involving immediate danger
of death or serious physical injury to any person requires
disclosure without delay of the information.''.
(2) Definitions.--Section 2711 of title 18, United States
Code, is amended--
(A) in paragraph (2), by striking ``and'' at the end;
(B) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(4) the term `governmental entity' means a department or
agency of the United States or any State or political
subdivision thereof.''.
SEC. 6. PATRIOT SECTION 213; LIMITATIONS ON DELAYED NOTICE
SEARCH WARRANTS.
(a) Grounds for Delay.--Section 3103a(b)(1) of title 18,
United States Code, is amended by striking ``may have an
adverse result (as defined in section 2705);'' and inserting
``may--
``(A) endanger the life or physical safety of an
individual;
``(B) result in flight from prosecution;
``(C) result in the destruction of or tampering with
evidence;
``(D) result in intimidation of potential witnesses; or
``(E) otherwise seriously jeopardize an investigation;''.
(b) Limitation on Reasonable Period for Delay.--Section
3103a(b)(3) of title 18, United States Code, is amended by--
(1) inserting ``on a date certain that is'' before ``within
a reasonable period of its execution''; and
(2) after ``good cause shown'' inserting ``, subject to the
condition that extensions should only be granted upon an
updated showing of the need for further delay and that each
additional delay should be limited to periods of 90 days or
less, unless the facts of the case justify a longer period of
delay''.
(c) Enhanced Oversight.--Section 3103a of title 18, United
States Code, is amended by adding at the end the following:
``(c) Reports.--
``(1) Report by judge.--Not later than 30 days after the
expiration of a warrant authorizing delayed notice (including
any extension thereof) entered under this section, or the
denial of such warrant (or request for extension), the
issuing or denying judge shall report to the Administrative
Office of the United States Courts--
``(A) the fact that a warrant was applied for;
``(B) the fact that the warrant or any extension thereof
was granted as applied for, was modified, or was denied;
``(C) the period of delay in the giving of notice
authorized by the warrant, and the number and duration of any
extensions; and
``(D) the offense specified in the warrant or application.
``(2) Report by administrative office of the united states
courts.--In April of each year, the Director of the
Administrative Office of the United States Courts shall
transmit to Congress a full and complete report--
``(A) concerning the number of applications for warrants
and extensions of warrants authorizing delayed notice
pursuant to this section, and the number of warrants and
extensions granted or denied pursuant to this section during
the preceding calendar year; and
``(B) that includes a summary and analysis of the data
required to be filed with the Administrative Office by
paragraph (1).
``(3) Regulations.--The Director of the Administrative
Office of the United States Courts, in consultation with the
Attorney General, is authorized to issue binding regulations
dealing with the content and form of the reports required to
be filed under paragraph (1).''.
SEC. 7. PATRIOT SECTION 214; FACTUAL BASIS FOR PEN REGISTER
AND TRAP AND TRACE AUTHORITY UNDER FISA.
(a) Factual Basis for Pen Registers and Trap and Trace
Devices Under FISA.--
(1) Application.--Section 402(c)(2) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)(2))
is amended by striking ``a certification by the applicant
that'' and inserting ``a statement of the facts relied upon
by the applicant to justify the applicant's belief that''.
(2) Order.--Section 402(d)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1842(d)(1)) is amended by
striking ``if the judge finds that'' and all that follows and
inserting ``if the judge finds that the application includes
sufficient facts to justify the belief that the information
likely to be obtained is foreign intelligence information not
concerning a United States person or is relevant to an
ongoing investigation to protect against international
terrorism or clandestine intelligence activities and
otherwise satisfies the requirements of this section.''.
(b) Records.--Section 402(d)(2) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1842(d)(2)) is amended--
(1) in subparagraph (A)--
(A) in clause (ii), by adding ``and'' at the end; and
(B) in clause (iii), by striking the period at the end and
inserting a semicolon; and
(2) in subparagraph (B)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(C) shall direct that, upon the request of the applicant,
the provider of a wire or electronic communication service
shall disclose to the Federal officer using the pen register
or trap and trace device covered by the order--
``(i) in the case of the customer or subscriber using the
service covered by the order (for the period specified by the
order)--
``(I) the name of the customer or subscriber;
``(II) the address of the customer or subscriber;
[[Page S8232]]
``(III) the telephone or instrument number, or other
subscriber number or identifier, of the customer or
subscriber, including any temporarily assigned network
address or associated routing or transmission information;
``(IV) the length of the provision of service by such
provider to the customer or subscriber and the types of
services utilized by the customer or subscriber;
``(V) in the case of a provider of local or long distance
telephone service, any local or long distance telephone
records of the customer or subscriber;
``(VI) if applicable, any records reflecting period of
usage (or sessions) by the customer or subscriber; and
``(VII) any mechanisms and sources of payment for such
service, including the number of any credit card or bank
account utilized for payment for such service; and
``(ii) if available, with respect to any customer or
subscriber of incoming or outgoing communications to or from
the service covered by the order--
``(I) the name of such customer or subscriber;
``(II) the address of such customer or subscriber;
``(III) the telephone or instrument number, or other
subscriber number or identifier, of such customer or
subscriber, including any temporarily assigned network
address or associated routing or transmission information;
and
``(IV) the length of the provision of service by such
provider to such customer or subscriber and the types of
services utilized by such customer or subscriber.''.
(c) Enhanced Oversight.--Section 406 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1846) is
amended--
(1) in subsection (a), by inserting ``, and the Committee
on the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate,'' after ``of the
Senate''; and
(2) in subsection (b), by striking ``On a semiannual
basis'' through ``the preceding 6-month period'' and
inserting, ``In April of each year, the Attorney General
shall transmit to the Administrative Office of the United
States Courts and to Congress a report setting forth with
respect to the preceding calendar year''.
SEC. 8. PATRIOT SECTION 215; PROCEDURAL PROTECTIONS FOR COURT
ORDERS TO PRODUCE RECORDS AND OTHER ITEMS IN
INTELLIGENCE INVESTIGATIONS.
(a) Factual Basis for Requested Order.--
(1) Application.--Section 501(b)(2) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(b)(2))
is amended by striking ``shall specify that the records
concerned are sought for'' and inserting ``shall include a
statement of facts showing that there are reasonable grounds
to believe that the records or other things sought are
relevant to''.
(2) Order.--Section 501(c)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(c)(1)) is amended by
striking ``if the judge finds that'' and all that follows and
inserting ``if the judge finds that the statement of facts
contained in the application establishes reasonable grounds
to believe that the records or other things sought are
relevant to an authorized investigation conducted in
accordance with subsection (a)(2) to obtain foreign
intelligence information not concerning a United States
person or to protect against international terrorism or
clandestine intelligence activities, and the application
meets the other requirements of this section.''.
(b) Additional Protections.--Section 501(c) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(c)) is
amended--
(1) in paragraph (2), by inserting after ``An order under
this subsection'' the following: ``--
``(A) shall describe the tangible things concerned with
sufficient particularity to permit them to be fairly
identified;
``(B) shall prescribe a return date which will provide a
reasonable period of time within which the tangible things
can be assembled and made available;
``(C) shall provide clear and conspicuous notice of the
principles and procedures set forth in subsections (d) and
(f); and
``(D)''.
(c) Director Approval for Certain Applications.--Section
501(a) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1861(a)) is amended--
(1) in paragraph (1), by striking ``The Director'' and
inserting ``Except as provided in paragraph (3), the
Director''; and
(2) by adding at the end the following:
``(3) No application shall be made under this section for
an order requiring the production of library circulation
records, library patron lists, book sales records, book
customer lists, firearms sales records, or medical records
containing personally identifiable information without the
prior written approval of the Director of the Federal Bureau
of Investigation. The Director may delegate authority to
approve such an application to the Deputy Director of the
Federal Bureau of Investigation, but such authority may not
be further delegated.''.
(d) Prohibition on Disclosure.--Section 501(d) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861(d)) is amended to read as follows:
``(d)(1) No person shall disclose to any other person that
the Federal Bureau of Investigation has sought or obtained
tangible things pursuant to an order under this section other
than to--
``(A) those persons to whom such disclosure is necessary to
comply with such order;
``(B) an attorney to obtain legal advice or assistance with
respect to the production of things in response to the order;
or
``(C) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(2)(A) Any person having received a disclosure under
subparagraph (A), (B), or (C) of paragraph (1) shall be
subject to the prohibitions on disclosure under that
paragraph.
``(B) Any person making a further disclosure authorized by
subparagraph (A), (B), or (C) of paragraph (1) shall notify
the person to whom the disclosure is made of the prohibitions
on disclosure under this subsection.
``(3) An order under this section shall notify, in writing,
the person to whom the order is directed of the nondisclosure
requirements under this subsection.''.
(e) Judicial Review.--Section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is
amended by adding at the end the following:
``(f)(1)(A) Any person receiving an order to produce any
tangible thing under this section may challenge the legality
of that order by filing a petition in the court established
under section 103(a).
``(B) That petition may be considered by any judge of the
court.
``(C) The judge considering the petition may modify or set
aside the order if the judge finds that the order does not
meet the requirements of this section or is otherwise
unlawful.
``(D) Any petition for review of a decision to affirm,
modify, or set aside an order under this paragraph by the
United States or any person receiving such order shall be
sent to the court of review established under section 103(b),
which shall have jurisdiction to consider such petitions.
``(E) The court of review shall immediately provide for the
record a written statement of the reasons for its decision
and, on petition of the United States or any person receiving
such order for a writ of certiorari, the record shall be
transmitted under seal to the Supreme Court, which shall have
jurisdiction to review such decision.
``(2)(A) Judicial proceedings under this subsection shall
be concluded as expeditiously as possible.
``(B) The record of proceedings, including applications
made and orders granted, shall be maintained under security
measures established by the Chief Justice of the United
States in consultation with the Attorney General and the
Director of National Intelligence.
``(3) All petitions under this subsection shall be filed
under seal, and the court, upon the request of the
Government, shall review any Government submission, which may
include classified information, as well as the application of
the Government and related materials, ex parte and in
camera.''.
(f) Enhanced Oversight.--Section 502 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1862) is
amended--
(1) in subsection (a), by inserting ``, and the Committee
on the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate,'' after ``of the
Senate''; and
(2) in subsection (b)--
(A) by striking ``On a semiannual basis'' through ``the
preceding 6-month period'' and inserting ``In April of each
year, the Attorney General shall transmit to the Congress a
report setting forth with respect to the preceding calendar
year'';
(B) in paragraph (1), by striking ``and'' at the end;
(C) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(D) by adding at the end the following:
``(3) the total number of applications made for orders
approving requests for the production of tangible things
under section 501, and the total number of orders either
granted, modified, or denied, when the application or order
involved any of the following:
``(A) The production of tangible things from a library, as
defined in section 213(2) of the Library Services and
Technology Act (20 U.S.C. 9122(2)).
``(B) The production of tangible things from a person or
entity primarily engaged in the sale, rental, or delivery of
books, journals, magazines, or other similar forms of
communication whether in print or digitally.
``(C) The production of records related to the purchase of
a firearm, as defined in section 921(a)(3) of title 18,
United States Code.
``(D) The production of health information, as defined in
section 1171(4) of the Social Security Act (42 U.S.C.
1320d(4)).
``(E) The production of taxpayer return information,
return, or return information, as defined in section 6103(b)
of the Internal Revenue Code of 1986 (26 U.S.C. 6103(b)).
``(c) Each report under subsection (b) shall be submitted
in unclassified form, but may include a classified annex.
``(d) In April of each year, the Attorney General shall
transmit to the Administrative Office of the United States
Courts and to Congress a report setting forth with respect to
the preceding calendar year--
``(1) the total number of applications made for orders
approving requests for the production of tangible things
under section 501; and
``(2) the total number of such orders either granted,
modified, or denied.''.
[[Page S8233]]
SEC. 9. PATRIOT SECTION 505; PROCEDURAL PROTECTIONS FOR
NATIONAL SECURITY LETTERS.
(a) In General.--Section 2709(a) of title 18, United States
Code, is amended--
(1) by striking ``A wire or electronic communication
service provider'' and inserting the following:
``(1) In general.--A wire or electronic communication
service provider''; and
(2) by adding at the end the following:
``(2) Judicial review.--A wire or electronic communication
service provider who receives a request under subsection (b)
may, at any time, seek a court order from an appropriate
United States district court to modify or set aside the
request. Any such motion shall state the grounds for
challenging the request with particularity. The court may
modify or set aside the request if compliance would be
unreasonable or oppressive.''.
(b) Nondisclosure.--Section 2709(c) of title 18, United
States Code, is amended--
(1) by striking ``No wire or electronic communication
service provider'' and inserting the following:
``(1) In general.--No wire or electronic communication
service provider''; and
(2) by adding at the end the following:
``(2) Judicial review.--A wire or electronic communication
service provider who receives a request under subsection (b)
may, at any time, seek a court order from an appropriate
United States district court challenging the nondisclosure
requirement under paragraph (1). Any such motion shall state
the grounds for challenging the nondisclosure requirement
with particularity.
``(3) Standard of review.--The court may modify or set
aside such a nondisclosure requirement if there is no reason
to believe that disclosure may endanger the national security
of the United States, interfere with a criminal,
counterterrorism, or counterintelligence investigation,
interfere with diplomatic relations, or endanger the life or
physical safety of any person. In reviewing a nondisclosure
requirement, the certification by the Government that the
disclosure may endanger the national security of the United
States or interfere with diplomatic relations shall be
treated as conclusive unless the court finds that the
certification was made in bad faith.''.
(c) Enforcement of National Security Letters.--Section
2709(a) of title 18, United States Code, as amended by
subsection (b), is amended by adding at the end the
following:
``(3) Enforcement of requests.--The Attorney General may
seek enforcement of a request under subsection (b) in an
appropriate United States district court if a recipient
refuses to comply with the request.''.
(d) Disclosure of Information.--
(1) Secure proceedings.--Section 2709 of title 18, United
States Code, as amended by subsections (b) and (c), is
amended--
(A) in subsection (a), by adding at the end the following:
``(4) Secure proceedings.--The disclosure of information in
any proceedings under this subsection may be limited
consistent with the requirements of the Classified
Information Procedures Act (18 U.S.C. App).''; and
(B) in subsection (c), by adding at the end the following:
``(4) Secure proceedings.--The disclosure of information in
any proceedings under this subsection may be limited
consistent with the requirements of the Classified
Information Procedures Act (18 U.S.C. App).''.
(2) Disclosure to necessary persons.--Section 2709(c)(1) of
title 18, United States Code, as amended by subsection (b),
is amended--
(A) by inserting after ``any person'' the following: ``,
except for disclosure to an attorney to obtain legal advice
regarding the request or to persons to whom disclosure is
necessary in order to comply with the request,''; and
(B) by adding at the end the following: ``Any attorney or
person whose assistance is necessary to comply with the
request who is notified of the request also shall not
disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or
records under this section.''.
SEC. 10. SUNSET PROVISIONS.
(a) Modification of PATRIOT Act Sunset Provision.--Section
224(a) of the USA PATRIOT Act (18 U.S.C. 2510 note) is
amended to read as follows:
``(a) In General.--Except as provided in subsection (b),
sections 206 and 215, and the amendments made by those
sections, shall cease to have effect on December 31, 2009,
and any provision of law amended or modified by such sections
shall take effect on January 1, 2010, as in effect on the day
before the effective date of this Act.''.
(b) Extension of Sunset on ``Lone Wolf'' Provision.--
Subsection (b) of section 6001 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 1801 note) is
amended to read as follows:
``(b) Sunset.--
``(1) In general.--Except as provided in paragraph (2), the
amendment made by subsection (a) shall cease to have effect
on December 31, 2009.
``(2) Special rule.--With respect to any particular foreign
intelligence investigation that began before the date on
which the amendment made by subsection (a) ceases to have
effect, section 101(b)(1) of the Foreign Intelligence
Surveillance Act of 1978, as amended by subsection (a), shall
continue in effect.''.
(c) Repeal of Sunset Provision Relating to Section 2332B
and the Material Support Sections of Title 18, United States
Code.--Section 6603 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 10809458; 118 Stat. 3762)
is amended by striking subsection (g).
(d) Technical Amendment.--Section 1(a) of the Uniting and
Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001 is amended to read as follows:
``(a) Short Title.--This Act may be cited as the `Uniting
and Strengthening America by Providing Appropriate tools
Required to Intercept and Obstruct Terrorism Act of 2001' or
the `USA PATRIOT Act'.''.
SEC. 11. ENHANCEMENT OF SUNSHINE PROVISIONS.
(a) Rules and Procedures for FISA Courts.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended by adding at the end the following:
``(e)(1) The courts established pursuant to subsections (a)
and (b) may establish such rules and procedures, and take
such actions, as are reasonably necessary to administer their
responsibilities under this Act.
``(2) The rules and procedures established under paragraph
(1), and any modifications of such rules and procedures,
shall be recorded, and shall be transmitted to the following:
``(A) All of the judges on the court established pursuant
to subsection (a).
``(B) All of the judges on the court of review established
pursuant to subsection (b).
``(C) The Chief Justice of the United States.
``(D) The Committee on the Judiciary of the Senate.
``(E) The Select Committee on Intelligence of the Senate.
``(F) The Committee on the Judiciary of the House of
Representatives.
``(G) The Permanent Select Committee on Intelligence of the
House of Representatives.
``(3) The transmissions required by paragraph (2) shall be
submitted in unclassified form, but may include a classified
annex.''.
(b) Enhanced Congressional Oversight of FISA Emergency
Authorities.--
(1) Emergency electronic surveillance.--Section 107 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1807), is amended--
(A) in paragraph (a), by striking ``and'' at the end;
(B) in paragraph (b), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(c) the total number of emergency employments of
electronic surveillance under section 105(f) and the total
number of subsequent orders approving or denying such
electronic surveillance.''.
(2) Emergency physical searches.--Section 306 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1826) is amended--
(A) in the first sentence, by inserting ``, and the
Committee on the Judiciary of the House of Representatives
and the Committee on the Judiciary of the Senate,'' after
``the Senate'';
(B) in the second sentence, by striking ``and the
Committees on the Judiciary of the House of Representatives
and the Senate'';
(C) in paragraph (2), by striking ``and'' at the end;
(D) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(E) by adding at the end the following:
``(4) the total number of emergency physical searches
authorized by the Attorney General under section 304(e) (50
U.S.C. 1824(e)), and the total number of subsequent orders
approving or denying such physical searches.''.
(3) Emergency pen registers and trap and trace devices.--
Section 406(b) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1846(b)), as amended by section 7, is
amended--
(A) in paragraph (1), by striking ``and'' at the end;
(B) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(3) the total number of pen registers and trap and trace
devices whose installation and use was authorized by the
Attorney General on an emergency basis under section 403, and
the total number of subsequent orders approving or denying
the installation and use of such pen registers and trap and
trace devices.''.
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