[Congressional Record: October 20, 2009 (Extensions)]
[Page E2581-E2582]
SECTION BY SECTION ANALYSIS--USA PATRIOT AMENDMENTS ACT OF 2009
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HON. JOHN CONYERS, JR.
of michigan
in the house of representatives
Tuesday, October 20, 2009
Mr. CONYERS. Madam Speaker, I submit the following:
Sec. 1. Short title and table of contents. Section 1 names
this Act the ``USA PATRIOT Amendments Act of 2009'' and
provides a table of contents for the entire bill.
Title I--USA PATRIOT Act Related Amendments
Sec. 101. Roving Wiretaps. Sec. 101 clarifies that when the
government only provides a description of the target of
surveillance for purposes of obtaining a warrant (whether or
not that warrant is for a regular or roving FISA warrant),
that description must be sufficient to allow a court to
determine that the target is a single individual.
Sec. 102. Extension of Sunset of Sections 206 and 215 of
USA PATRIOT Act. Sec. 102 extends the sunset dates of roving
wiretaps and FISA business records to December 31, 2013.
Sec. 103. Access to Certain Tangible Things under section
501 of the Foreign Intelligence Surveillance Act of 1978.
Sec. 103 (Sec. 215 tangible things) requires a statement of
specific and articulable facts showing that the tangible
things sought are relevant to an authorized investigation,
other than a threat assessment. The ``specific and
articulable'' language is not present in the current law, and
is a more exacting standard for government to meet.
This section also retains the concept that certain types of
records are ``presumptively relevant'' to a counterterrorism
or counterintelligence related investigation (assuming an
appropriate statement containing specific and articulable
facts). The retention of the ``presumptive relevance'' for
documents pertaining to foreign powers or agents of a foreign
power accomplishes two important goals. First, it puts the
government and a court on notice that these types of records
are the type of documents that Congress generally expects the
government will be pursuing in furtherance of authorized
counterterrorism and counterintelligence investigations. The
presumptive relevance standard does not, however, allow the
government to obtain the documents merely by showing
relevance to a foreign power or agent of a foreign power
through a statement of ``specific and articulable facts.'' A
court must also find that the requested records are actually
relevant to an authorized investigation.
Second, the government may be able to acquire certain
records even if it cannot show
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that the documents are relevant to a foreign power or agent
of a foreign power. However, these types of records, which do
not fall into the ``presumptively relevant'' category, would
be evaluated with a higher degree of scrutiny by a court. The
court would determine whether or not the government presented
specific and articulable facts to show relevance to an
authorized investigation.
With respect to judicial review, current law requires the
recipient of a nondisclosure order associated with a Sec. 215
order to wait a year before seeking judicial review of the
nondisclosure order. Sec. 103 allows a recipient to challenge
both the underlying order and any associated nondisclosure
order immediately. In addition, the government must notify
the recipient of a right to challenge the legality of the
production order or nondisclosure order, and the procedure to
follow to file such a petition at the time the government
serves the Sec. 215 order on the recipient. Absent bad faith
on the part of the government, current law also allows a
certification by a high level official to conclusively defeat
a challenge to a nondisclosure order. Sec. 103 eliminates the
concept of a ``conclusive certification'' entirely.
Compliance assessments of minimization procedures
pertaining to Sec. 215 orders are now facilitated by allowing
FISA court judges to review government compliance with
minimization procedures associated with specific orders. A
request for Sec. 215 records cannot be made to a library or
bookseller for documentary materials that contain personally
identifiable information concerning a patron. None of these
elements are present in the current law.
Sec. 104. Sunset Relating to Individual Terrorists as
Agents of Foreign Powers. Sec. 104 allows the ``Lone Wolf'
provision to sunset on December 31, 2009. ``Lone Wolf'' is
not reauthorized.
Sec. 105. Audits. Sec. 105 requires the DOJ Inspector
General to audit and submit reports to Congress for 215
tangible thing orders, National Security Letters (NSLs), and
FISA pen register/trap and trace orders for all calendar
years through 2013.
Sec. 106. Criminal ``sneak and peek'' searches. Sec. 106
requires the government to seek an extension for delaying
notice of the search after seven (7) days, not the current
thirty (30) days. Any extension to delay notice granted by a
court cannot be longer than 21 days at a time. In addition,
any application for extension must be made by the Senate-
confirmed United States Attorney for the district seeking the
delay. This section also narrows the circumstances under
which the government could obtain a ``sneak and peek''
warrant by eliminating ``otherwise seriously jeopardizing an
investigation or unduly delaying a trial'' as a situation
that would permit the issuance of a ``sneak and peek''
warrant.
Sec. 107. Use of Pen Registers and Trap and Trace Devices
under title 18, United States Code. Sec. 107 requires the
application for a pen register to contain a statement of
specific and articulable facts showing that the information
likely to be obtained is relevant to an ongoing criminal
investigation. Current law only requires a certification by
the applicant.
Sec. 108. Orders for Pen Registers and Trap and Trace
Devices for Foreign Intelligence Purposes. Sec. 108 requires
the application for a pen register to contain a statement of
specific and articulable facts relied upon by the applicant
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. Current law only requires a certification by
the applicant. This section also requires the implementation
of minimization procedures for pen registers and trap and
trace devices, and allows FISA court judges to assess the
government's compliance with these minimization procedures.
These are new requirements.
Sec. 109. Public Reporting on the Foreign Intelligence
Surveillance Act. Sec. 109 requires annual public reporting
of aggregate numbers of requests for surveillance that also
include a breakdown of requests for (a) electronic
surveillance, (b) physical searches, (c) orders for tangible
things (Section 215 orders), and (d) pen registers. Current
law requires only public reporting of the above categories in
the aggregate.
Sec. 110. Challenges to Nationwide Orders for Electronic
Surveillance. Sec. 110 allows a provider of electronic
communication service or remote computing service to
challenge a subpoena, order, or warrant requiring disclosure
of customer communications or records in either the district
in which the order was issued or the district in which the
order was served.
Title 11--National Security Letter Reform
Sec. 201. Short Title. Sec. 201 indicates that title II
shall be cited as the ``National Security Letter Reform Act
of 2009.''
Sec. 202. Sunset. Section 202 provides a sunset date of
December 31, 2013 for national security letters, with the
effect of returning the relevant national security letter
statutes to read as they read on October 25, 2001.
Sec. 203. National Security Letter defined. Sec. 203
defines ``national security letter,'' for the purposes of
this bill, as a request for information under one of the
enumerated provisions of law.
Sec. 204. Modification of Standard. Sec. 204 requires an
official with authority to issue a national security letter
to document and retain a statement of specific and
articulable facts showing that there are reasonable grounds
to believe that the information sought pertains to a foreign
power or agent of a foreign power. This standard changes the
focus of the ``relevance'' required under current law from
``authorized investigation'' to ``foreign power or agent of a
foreign power.'' In addition, current law does not directly
couple the relevance standard with ``specific and
articulable'' facts as support for relevance--a more exacting
standard for the government to meet. Current law also does
not require the government to create and maintain a record of
such facts at the time the national security letter is
issued.
Sec. 205. Notification of Right to Judicial Review of
Nondisclosure Order. Sec. 205 requires the government to
notify a recipient of a national security letter of (1) a
right to judicial review of any nondisclosure requirement
imposed in connection with that national security letter and,
(2) that the nondisclosure requirement will remain in effect
during the pendency of any judicial review proceedings.
Current law does not require such notification.
Sec. 206. Disclosure for Law Enforcement Purposes. Sec. 206
requires the Attorney General to authorize the use of any
information acquired or derived from a national security
letter in a criminal proceeding. Current law does not require
such ``use authority'' for national security letters.
Sec. 207. Judicial Review of National Security Letter
Nondisclosure Order. Sec. 207 establishes additional
procedures for a recipient to seek judicial review of a
nondisclosure requirement imposed in connection with a
national security letter. If the recipient wishes to have a
court review a nondisclosure requirement, the recipient must
notify the government. Not later than thirty days after the
receipt of notification, the government must apply for a
court order prohibiting the disclosure of information about
the national security letter or the existence of the national
security letter. The nondisclosure requirement remains in
effect during the pendency of any judicial review
proceedings. The government's application for a nondisclosure
order must include a certification from the Attorney General,
Deputy Attorney General, or the Director of the FBI (or the
head of another agency if not part of DOJ) containing a
statement of specific and articulable facts indicating that
disclosure may result in a danger to the national security of
the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation,
interference with diplomatic relations, or danger to the life
or physical safety of any person. If a court determines that
there is reason to believe that disclosure will result in one
of the enumerated harms, the court will issue a nondisclosure
order for no longer than 180 days. The government can seek
renewals of nondisclosure orders for additional periods of no
longer than 180 days each. If there comes a time when the
facts supporting a nondisclosure order issued by the court
cease to exist, the government must promptly notify a
recipient who sought judicial review of a nondisclosure order
that the nondisclosure is no longer in effect.
Current law neither requires the recipient to formally
notify the government if ``he'' wishes to seek judicial
review, nor specifies that the government will initiate such
court review by applying for a court order. The government is
also not required to notify a recipient who sought judicial
review of a nondisclosure if or when such an order would
cease to exist based on a change in facts supporting the
nondisclosure order. In addition, absent bad faith on the
part of the government, current law also allows a
certification by a high level government official to
conclusively defeat a challenge to a nondisclosure order if
the challenge is filed within one year of the request for
records. Current law also allows a recertification made by
high level officials to be treated as conclusive, unless made
in bad faith. Sec. 207 eliminates the concept of a
``conclusive certification'' entirely. Moreover, this section
corrects constitutional defects in the nondisclosure orders
pertaining to national security letters as addressed in Doe
v. Mukasey, 549 F.3d 861 (2nd Cir. 2008).
Sec. 208. Minimization Procedures. Sec. 208 requires the
Attorney General to establish minimization and destruction
procedures to ensure that information obtained pursuant to a
national security letter regarding persons that are no longer
of interest in an authorized investigation is destroyed.
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