[Congressional Record: September 22, 2009 (Senate)]
[Page S9675-S9680]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself, Mr. Cardin, and Mr. Kaufman):
S. 1692. A bill to extend the sunset of certain provisions of the USA
PATRIOT Act and the authority to issue national security letters, and
for other purposes; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, security and liberty are both essential in
our free society. Benjamin Franklin wrote: ``Those who can give up
essential liberty to obtain a little temporary safety, deserve neither
liberty nor safety.'' I have been mindful of this since the devastating
attacks of September 11, and each time we have considered the USA
PATRIOT Act. The American people of today and those of tomorrow--our
children and grandchildren--depend on us to do our best to ensure both
security and the preservation of our essential liberties.
After September 11, the Government's power to gather information
about those suspected of, or connected to, potential terrorists
increased. Because such surveillance may, sometimes by mistake, sweep
in U.S. citizens, we must vigilantly monitor these laws to ensure that
they are implemented appropriately. This calls for public, judicial and
congressional oversight to make sure we maintain the proper respect for
security and liberty.
[[Page S9674]]
After September 11, I introduced the USA PATRIOT Act, Patriot Act, to
give the Government the tools needed to defend this country and
aggressively pursue those who would do us harm. Even in those dark
days, I insisted on oversight. Working with the then House Majority
Leader, Republican Dick Armey, we included sunsets for some of the
provisions of the bill that had the greatest potential to directly
affect Americans.
We debated the reauthorization of the Patriot Act for several months
in 2005 and 2006. I again fought to protect the civil liberties and
constitutional rights of Americans. Unfortunately, after a series of
short extensions, the reauthorization of 2006 lacked sufficient
constitutional protections over the vast authorities it granted to the
Government. I had worked to secure increased oversight and to include
new sunsets in the bill.
With those sunsets expiring on December 31, 2009, we must once again
consider the Patriot Act. Three provisions of the Patriot Act are
slated to expire at the end of this year, including the authorization
for roving wiretaps, the ``lone wolf'' measure, and orders for tangible
things, commonly referred to as the ``library'' provision.
In March, I sent Attorney General Holder a letter requesting the
administration's views on these expiring provisions. I reiterated that
request at a Senate Judiciary Committee oversight hearing in June. I
have recently received a letter from the Attorney General urging us to
extend the expiring authorities. I appreciate the President and the
Attorney General's emphasis on accountability and checks and balances,
and their willingness to consider additional ideas.
Today I am introducing a bill with Senators Cardin and Kaufman that
does just that. It will extend the authorization of the three expiring
provisions. The bill also updates checks and balances by increasing
judicial review of the use of Government powers that capture
information on U.S. citizens, and augments congressional oversight. We
propose increasing Government accountability through more transparent
public reporting of the use of surveillance, and by requiring audits of
how these vast authorities have been used since they were last
reauthorized. In addition, we propose that, given their extensive use
abuse and intrusiveness, we include a sunset for National Security
Letters, NSLs. I introduced a bill in 2006, after the most recent
Patriot Act reauthorization, to impose a sunset on NSLs. This sunset
provision, combined with a comprehensive audit by the Inspector
General, will help to hold the Federal Bureau of Investigation, FBI,
accountable in its use of this authority.
In developing this bill, I worked closely with Senators Feingold and
Durbin to protect the rights and privacy of Americans, and to expand
oversight. Senators Feingold and Durbin have worked tirelessly over the
years to protect the civil liberties of Americans, from the first
debate over the Patriot Act in 2001, to the reauthorization in 2006, to
the FISA Amendments Act enacted last year. I am pleased that Senators
Cardin, Kaufman and I have adopted some of the concepts they proposed
in the SAFE Act of 2005, and that were included in the broader Patriot
Act reauthorization bill they introduced last week, the JUSTICE Act.
I have long been concerned over the issuance and oversight of NSLs.
National Security Letters are, in effect, a form of administrative
subpoena. They do not require approval by a court, grand jury, or
prosecutor. They are issued in secret, with recipients silenced, under
penalty of law. Yet NSLs allow the Government to collect sensitive
information, such as personal financial records. As Congress expanded
the NSL authority in recent years, I raised concerns about how the FBI
handles the information it collects on Americans. I noted that, with no
real limits imposed by Congress, the FBI could store this information
electronically and use it for large-scale, data-mining operations. We
now know that the NSL authority was significantly misused. In 2008 the
Department of Justice Inspector General issued a report on the FBI's
use of NSLs revealing serious over-collection of information and abuse
of the NSL authority.
We should reconsider the breadth of the NSL authority. This bill
would also impose more judicial oversight and higher standards on the
issuance of NSLs. It would require the FBI to include a statement of
facts articulating why the information it is seeking is relevant to an
authorized investigation.
The bill also addresses the constitutional deficiency recently
identified by the Second Circuit Court of appeals in Doe v. Musasey.
The Second Circuit found that the nondisclosure, or ``gag orders,''
issued under NSLs are a constitutional infringement. I have long
maintained that position. The bill establishes a procedure whereby the
recipient of an NSL has 21 days to notify the Government that it wishes
to challenge the nondisclosure requirement. The Government then has 21
additional days to apply for a court order to compel compliance with
the nondisclosure requirement. This scheme corrects the constitutional
defects found by the Second Circuit. The bill would shift the burden of
defending the need for a gag order to the Government. This bill also
eliminates the NSL nondisclosure provision that allows the Government
to ensure itself of victory by certifying that, in its view, disclosure
``may'' endanger national security or ``may'' interfere with diplomatic
relations. The bill further strengthens judicial review of
nondisclosure or ``gag orders'' associated with NSLs by imposing a one-
year limitation on such orders. To protect on-going law enforcement
investigations, it permits renewals of the nondisclosure orders in
appropriate cases.
The power of the government to collect records for tangible things
under Section 215 of the original Patriot Act, commonly referred to as
the ``library records'' provision, is another authority that I worked
to reform during the last reauthorization. It is time to redefine the
way we describe this authority to accurately reflect the broad scope of
information it allows the government to collect. Section 215 allows the
FISA court to secretly require any entity to produce any document or
other tangible thing with a minimal standard of relevance and a
presumption in favor of the Government's showing of relevance. This
bill correctly identifies Section 215 orders as orders for ``tangible
things'' as opposed to only for ``business records'' as it is in
current law.
This bill adopts the reasonable constitutional standard that I
supported in 2006 for 215 orders. First, it would eliminate the
presumption in favor of the government's assertion that the records it
is seeking are relevant to its investigation. This bill would require
the Government to make a connection between the records or other things
it seeks and a suspected terrorist or spy before it is able to obtain
confidential records such as library, medical and telephone records.
Section 215 orders for tangible things permit the Government to collect
an even broader scope of information than NSLs. For that reason, it is
critical that the Government show that the records it seeks are both
relevant to an investigation and connected to at least a suspected
terrorist or spy.
This bill would also establish more meaningful judicial review of
Section 215 orders. First, it repeals the requirement in current law
that requires a recipient of a Section 215 nondisclosure order to wait
for a full year before challenging that gag order. There is no
justification for this mandatory waiting period for judicial review,
and this bill eliminates it. It also repeals a provision added to the
law in 2006 stating that a conclusive presumption in favor of the
Government shall apply where a high level official certifies that
disclosure of the order for tangible things would endanger national
security or interfere with diplomatic relations. These restraints on
meaningful judicial review are unfair, unjustified, and completely
unacceptable. I fought hard to keep these two provisions out of the
2006 reauthorization, but the Republican majority at that time insisted
they be included.
This bill will strengthen court oversight of Section 215 orders by
requiring court oversight of minimization procedures when information
concerning a U.S. person is acquired, retained, or disseminated.
Requiring FISA Court approval of minimization procedures would simply
bring Section 215 orders in line with other FISA authorities--such as
wiretaps, physical searches,
[[Page S9675]]
and pen register and trap and trace devices--that already require FISA
court approval of minimization procedures. This is another common sense
modification to the law that was drafted in consultation with Senators
Feingold and Durbin. If we are to allow personal information to be
collected in secret, the court must be more involved in making sure the
authorities are used responsibly and that Americans' information and
personal privacy are protected.
Finally, this bill addresses concerns over the use of pen register or
trap and trace devices ``pen/trap''. The bill raises the standard for
pen/trap in the same manner as it raises the standard for Section 215
orders. The Government would be required to show that the information
it seeks is both relevant to an investigation and connected to a
suspected terrorist or spy. This section also requires court review of
minimization procedures, which are not required under current law, and
adds an Inspector General audit of the use of pen/trap that is modeled
on the the audits of Section 215 orders and NSLs.
I look forward to working with the members of the Judiciary
Committee, the Senate, the House and with the administration as this
bill moves forward, and I welcome the views of others.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1692
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``USA PATRIOT Act Sunset
Extension Act of 2009''.
SEC. 2. SUNSETS.
(a) Sections 206 and 215 Sunset.--
(1) In general.--Section 102(b)(1) of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109-
177; 50 U.S.C. 1805 note, 50 U.S.C. 1861 note, and 50 U.S.C.
1862 note) is amended by striking ``2009'' and inserting
``2013''.
(2) Conforming amendments.--
(A) In general.--Section 601(a)(1)(D) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
1871(a)(1)(D)) is amended by striking ``section 501;'' and
inserting ``section 502 or under section 501 pursuant to
section 102(b)(2) the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C.
1861 note);''.
(B) Application under section 404 of the fisa amendments
act of 2008.--Section 404(b)(4)(A) of the FISA Amendments Act
of 2008 (Public Law 110-261; 122 Stat. 2477) is amended by
striking the period at the end and inserting ``, except that
paragraph (1)(D) of such section 601(a) shall be applied as
if it read as follows:
`(D) access to records under section 502 or under section
501 pursuant to section 102(b)(2) the USA PATRIOT Improvement
and Reauthorization Act of 2005 (Public Law 109-177; 50
U.S.C. 1861 note);'.''.
(C) Effective date.--The amendments made by this paragraph
shall take effect on December 31, 2013.
(b) Extension of Sunset Relating to Individual Terrorists
as Agents of Foreign Powers.--
(1) In general.--Section 6001(b) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (Public Law 108-458; 50
U.S.C. 1801 note) is amended to read as follows:
``(b) Sunset.--
``(1) Repeal.--Subparagraph (C) of section 101(b)(1) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(b)(1)), as added by subsection (a), is repealed
effective December 31, 2013.
``(2) Transition provision.--Notwithstanding paragraph (1),
subparagraph (C) of section 101(b)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1))
shall continue to apply after December 31, 2013 with respect
to any particular foreign intelligence investigation or with
respect to any particular offense or potential offense that
began or occurred before December 31, 2013.''.
(2) Conforming amendment.--
(A) In general.--Section 601(a)(2) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(2))
is amended by striking the semicolon at the end and inserting
``pursuant to subsection (b)(2) of section 6001 of the
Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458; 50 U.S.C. 1801 note);''.
(B) Effective date.--The amendment made by subparagraph (A)
shall take effect on December 31, 2013.
(c) National Security Letters.--
(1) In general.--Effective on December 31, 2013, the
following provisions of law are repealed:
(A) Section 2709 of title 18, United States Code.
(B) Section 1114(a)(5) of the Right to Financial Privacy
Act of 1978 (12 U.S.C. 3414(a)(5)).
(C) Subsections (a) and (b) of section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u).
(D) Section 627 of the Fair Credit Reporting Act (15 U.S.C.
1681v).
(E) Section 802 of the National Security Act of 1947 (50
U.S.C. 436).
(2) Transition provision.--Notwithstanding paragraph (1),
the provisions of law referred to in paragraph (1) shall
continue to apply after December 31, 2013 with respect to any
particular foreign intelligence investigation or with respect
to any particular offense or potential offense that began or
occurred before December 31, 2013.
(3) Technical and conforming amendments.--
(A) Title 18.--Title 18, United States Code, is amended--
(i) in the table of sections for chapter 121, by striking
the item relating to section 2709;
(ii) by striking section 3511; and
(iii) in the table of sections for chapter 223, by striking
the item relating to section 3511.
(B) Fair credit reporting act.--The Fair Credit Reporting
Act (15 U.S.C. 1681) is amended--
(i) in section 626 (15 U.S.C. 1681u)--
(I) in subsection (d)(1), by striking ``the identity of
financial institutions or a consumer report respecting any
consumer under subsection (a), (b), or (c)'' and inserting
``a consumer report respecting any consumer under subsection
(c)'';
(II) in subsection (h)(1), by striking ``subsections (a),
(b), and (c)'' and inserting ``subsection (c)''; and
(ii) in the table of sections, by striking the item
relating to section 627.
(C) National security act of 1947.--The National Security
Act of 1947 (50 U.S.C. 401 et seq.) is amended--
(i) in section 507(b) (50 U.S.C. 415b(b))--
(I) by striking paragraph (5); and
(II) by redesignating paragraph (6) as paragraph (5); and
(ii) in the table of contents, by striking the item
relating to section 802.
(D) Effective date.--The amendments made by this paragraph
shall take effect on December 31, 2013.
SEC. 3. FACTUAL BASIS FOR AND ISSUANCE OF ORDERS FOR ACCESS
TO TANGIBLE THINGS.
(a) In General.--Section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) is amended--
(1) in the section heading, by striking ``certain business
records'' and inserting ``tangible things'';
(2) in subsection (b)(2), by striking subparagraphs (A) and
(B) and inserting the following:
``(A) a statement of facts showing that there are
reasonable grounds to believe that the records or other
things sought--
``(i) are relevant to an authorized investigation (other
than a threat assessment) 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
``(ii)(I) pertain to a foreign power or an agent of a
foreign power;
``(II) are relevant to the activities of a suspected agent
of a foreign power who is the subject of such authorized
investigation; or
``(III) pertain to an individual in contact with, or known
to, a suspected agent of a foreign power; and
``(B) a statement of proposed minimization procedures.'';
and
(3) in subsection (c)--
(A) in paragraph (1)--
(i) by inserting ``and that the proposed minimization
procedures meet the definition of minimization procedures
under subsection (g)'' after ``subsections (a) and (b)''; and
(ii) by striking the second sentence; and
(B) in paragraph (2)--
(i) in subparagraph (D), by striking ``and'' at the end;
(ii) in subparagraph (E), by striking the period at the end
and inserting ``; and''; and
(iii) by adding at the end the following:
``(F) shall direct that the minimization procedures be
followed.''.
(b) Technical and Conforming Amendments.--
(1) Title heading.--Title V of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended
in the title heading by striking ``CERTAIN BUSINESS RECORDS''
and inserting ``TANGIBLE THINGS''.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by striking the items
relating to title V and section 501 and inserting the
following:
``TITLE V--ACCESS TO TANGIBLE THINGS FOR FOREIGN INTELLIGENCE PURPOSES
``Sec. 501. Access to tangible things for foreign intelligence purposes
and international terrorism investigations.''.
SEC. 4. FACTUAL BASIS FOR AND ISSUANCE OF ORDERS FOR PEN
REGISTERS AND TRAP AND TRACE DEVICES FOR
FOREIGN INTELLIGENCE PURPOSES.
(a) In General.--
(1) Application.--Section 402(c) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is
amended--
(A) in paragraph (1), by striking ``and'' at the end; and
(B) by striking paragraph (2) and inserting the following:
[[Page S9676]]
``(2) a statement of facts showing that there are
reasonable grounds to believe that the information likely to
be obtained--
``(A) is relevant to an authorized investigation (other
than a threat assessment) conducted in accordance with
subsection (a)(1) to obtain foreign intelligence information
not concerning a United States person or to protect against
international terrorism or clandestine intelligence
activities; and
``(B)(i) pertains to a foreign power or an agent of a
foreign power;
``(ii) is relevant to the activities of a suspected agent
of a foreign power who is the subject of such authorized
investigation; or
``(iii) pertains to an individual in contact with, or known
to, a suspected agent of a foreign power; and
``(3) a statement of proposed minimization procedures.''.
(2) Minimization.--
(A) Definition.--Section 401 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1841) is amended by
adding at the end the following:
``(4) The term `minimization procedures' means--
``(A) specific procedures that are reasonably designed in
light of the purpose and technique of an order for the
installation and use of a pen register or trap and trace
device, to minimize the acquisition and retention, and
prohibit the dissemination, of nonpublicly available
information concerning unconsenting United States persons
consistent with the need of the United States to obtain,
produce, and disseminate foreign intelligence information;
``(B) procedures that require that nonpublicly available
information, which is not foreign intelligence information,
as defined in section 101(e)(1), shall not be disseminated in
a manner that identifies any United States person, without
such person's consent, unless such person's identity is
necessary to understand foreign intelligence information or
assess its importance; and
``(C) notwithstanding subparagraphs (A) and (B), procedures
that allow for the retention and dissemination of information
that is evidence of a crime which has been, is being, or is
about to be committed and that is to be retained or
disseminated for law enforcement purposes.''.
(B) Pen registers and trap and trace devices.--Section 402
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1842) is amended--
(i) in subsection (d)--
(I) in paragraph (1), by inserting ``, and that the
proposed minimization procedures meet the definition of
minimization procedures under this title'' before the period
at the end; and
(II) in paragraph (2)(B)--
(aa) in clause (ii)(II), by striking ``and'' after the
semicolon; and
(bb) by adding at the end the following:
``(iv) the minimization procedures be followed; and''; and
(ii) by adding at the end the following:
``(h) At or before the end of the period of time for which
the installation and use of a pen register or trap and trace
device is approved under an order or an extension under this
section, the judge may assess compliance with the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
acquired, retained, or disseminated.''.
(C) Emergencies.--Section 403 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1843) is amended--
(i) by redesignating subsection (c) as (d); and
(ii) by inserting after subsection (b) the following:
``(c) If the Attorney General authorizes the emergency
installation and use of a pen register or trap and trace
device under this section, the Attorney General shall require
that the minimization procedures required by this title for
the issuance of a judicial order be followed.''.
(D) Use of information.--Section 405(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)) is
amended by striking ``provisions of'' and inserting
``minimization procedures required under''.
SEC. 5. LIMITATIONS ON DISCLOSURE OF NATIONAL SECURITY
LETTERS.
(a) In General.--Section 2709 of title 18, United States
Code, is amended by striking subsection (c) and inserting the
following:
``(c) Prohibition of Certain Disclosure.--
``(1) Prohibition.--
``(A) In general.--If a certification is issued under
subparagraph (B) and notice of the right to judicial review
under paragraph (4) is provided, no wire or electronic
communication service provider, or officer, employee, or
agent thereof, that receives a request under subsection (a),
shall disclose to any person the particular information
specified in the certification during the time period to
which the certification applies, which may be not longer than
1 year.
``(B) Certification.--The requirements of subparagraph (A)
shall apply if the Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a Bureau field
office, certifies that, absent a prohibition of disclosure
under this subsection, there may result--
``(i) a danger to the national security of the United
States;
``(ii) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(iii) interference with diplomatic relations; or
``(iv) danger to the life or physical safety of any person.
``(2) Exception.--
``(A) In general.--A wire or electronic communication
service provider, or officer, employee, or agent thereof,
that receives a request under subsection (a) may disclose
information otherwise subject to any applicable nondisclosure
requirement to--
``(i) those persons to whom disclosure is necessary in
order to comply with the request;
``(ii) an attorney in order to obtain legal advice or
assistance regarding the request; or
``(iii) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(B) Nondisclosure requirement.--A person to whom
disclosure is made under subparagraph (A) shall be subject to
the nondisclosure requirements applicable to a person to whom
a request is issued under subsection (a) in the same manner
as the person to whom the request is issued.
``(C) Notice.--Any recipient that discloses to a person
described in subparagraph (A) information otherwise subject
to a nondisclosure requirement shall inform the person of the
applicable nondisclosure requirement.
``(3) Extension.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge in a Bureau field
office, may extend a nondisclosure requirement for additional
periods of not longer than 1 year if, at the time of each
extension, a new certification is made under paragraph (1)(B)
and notice is provided to the recipient of the applicable
request that the nondisclosure requirement has been extended
and the recipient has the right to judicial review of the
nondisclosure requirement.
``(4) Right to judicial review.--
``(A) In general.--A wire or electronic communications
service provider that receives a request under subsection (a)
shall have the right to judicial review of any applicable
nondisclosure requirement and any extension thereof.
``(B) Timing.--
``(i) In general.--A request under subsection (a) shall
state that if the recipient wishes to have a court review a
nondisclosure requirement, the recipient shall notify the
Government not later than 21 days after the date of receipt
of the request.
``(ii) Extension.--A notice that the applicable
nondisclosure requirement has been extended under paragraph
(3) shall state that if the recipient wishes to have a court
review the nondisclosure requirement, the recipient shall
notify the Government not later than 21 days after the date
of receipt of the notice.
``(C) Initiation of proceedings.--If a recipient of a
request under subsection (a) makes a notification under
subparagraph (B), the Government shall initiate judicial
review under the procedures established in section 3511 of
this title.
``(5) Termination.--If the facts supporting a nondisclosure
requirement cease to exist prior to the applicable time
period of the nondisclosure requirement, an appropriate
official of the Federal Bureau of Investigation shall
promptly notify the wire or electronic service provider, or
officer, employee, or agent thereof, subject to the
nondisclosure requirement that the nondisclosure requirement
is no longer in effect.''.
(b) Identity of Financial Institutions and Credit
Reports.--Section 626 of the Fair Credit Reporting Act (15
U.S.C. 1681u) is amended by striking subsection (d) and
inserting the following:
``(d) Prohibition of Certain Disclosure.--
``(1) Prohibition.--
``(A) In general.--If a certification is issued under
subparagraph (B) and notice of the right to judicial review
under paragraph (4) is provided, no consumer reporting
agency, or officer, employee, or agent thereof, that receives
a request or order under subsection (a), (b), or (c), shall
disclose to any person the particular information specified
in the certification during the time period to which the
certification applies, which may be not longer than 1 year.
``(B) Certification.--The requirements of subparagraph (A)
shall apply if the Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a Bureau field
office, certifies that, absent a prohibition of disclosure
under this subsection, there may result--
``(i) a danger to the national security of the United
States;
``(ii) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(iii) interference with diplomatic relations; or
``(iv) danger to the life or physical safety of any person.
``(2) Exception.--
``(A) In general.--A consumer reporting agency, or officer,
employee, or agent thereof, that receives a request or order
under subsection (a), (b), or (c) may disclose information
otherwise subject to any applicable nondisclosure requirement
to--
``(i) those persons to whom disclosure is necessary in
order to comply with the request or order;
[[Page S9677]]
``(ii) an attorney in order to obtain legal advice or
assistance regarding the request or order; or
``(iii) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(B) Nondisclosure requirement.--A person to whom
disclosure is made under subparagraph (A) shall be subject to
the nondisclosure requirements applicable to a person to whom
a request or order is issued under subsection (a), (b), or
(c) in the same manner as the person to whom the request or
order is issued.
``(C) Notice.--Any recipient that discloses to a person
described in subparagraph (A) information otherwise subject
to a nondisclosure requirement shall inform the person of the
applicable nondisclosure requirement.
``(3) Extension.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge in a Bureau field
office, may extend a nondisclosure requirement for additional
periods of not longer than 1 year if, at the time of each
extension, a new certification is made under paragraph (1)(B)
and notice is provided to the recipient of the applicable
request or order that the nondisclosure requirement has been
extended and the recipient has the right to judicial review
of the nondisclosure requirement.
``(4) Right to judicial review.--
``(A) In general.--A consumer reporting agency that
receives a request or order under subsection (a), (b), or (c)
shall have the right to judicial review of any applicable
nondisclosure requirement and any extension thereof.
``(B) Timing.--
``(i) In general.--A request or order under subsection (a),
(b), or (c) shall state that if the recipient wishes to have
a court review a nondisclosure requirement, the recipient
shall notify the Government not later than 21 days after the
date of receipt of the request or order.
``(ii) Extension.--A notice that the applicable
nondisclosure requirement has been extended under paragraph
(3) shall state that if the recipient wishes to have a court
review the nondisclosure requirement, the recipient shall
notify the Government not later than 21 days after the date
of receipt of the notice.
``(C) Initiation of proceedings.--If a recipient of a
request or order under subsection (a), (b), or (c) makes a
notification under subparagraph (B), the Government shall
initiate judicial review under the procedures established in
section 3511 of title 18, United States Code.
``(5) Termination.--If the facts supporting a nondisclosure
requirement cease to exist prior to the applicable time
period of the nondisclosure requirement, an appropriate
official of the Federal Bureau of Investigation shall
promptly notify the consumer reporting agency, or officer,
employee, or agent thereof, subject to the nondisclosure
requirement that the nondisclosure requirement is no longer
in effect.''.
(c) Disclosures to Governmental Agencies for
Counterterrorism Purposes.--Section 627 of the Fair Credit
Reporting Act (15 U.S.C. 1681v) is amended by striking
subsection (c) and inserting the following:
``(c) Prohibition of Certain Disclosure.--
``(1) Prohibition.--
``(A) In general.--If a certification is issued under
subparagraph (B) and notice of the right to judicial review
under paragraph (4) is provided, no consumer reporting
agency, or officer, employee, or agent thereof, that receives
a request under subsection (a), shall disclose to any person
the particular information specified in the certification
during the time period to which the certification applies,
which may be not longer than 1 year.
``(B) Certification.--The requirements of subparagraph (A)
shall apply if the head of a government agency authorized to
conduct investigations of intelligence or counterintelligence
activities or analysis related to international terrorism, or
a designee, certifies that, absent a prohibition of
disclosure under this subsection, there may result--
``(i) a danger to the national security of the United
States;
``(ii) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(iii) interference with diplomatic relations; or
``(iv) danger to the life or physical safety of any person.
``(2) Exception.--
``(A) In general.--A consumer reporting agency, or officer,
employee, or agent thereof, that receives a request under
subsection (a) may disclose information otherwise subject to
any applicable nondisclosure requirement to--
``(i) those persons to whom disclosure is necessary in
order to comply with the request;
``(ii) an attorney in order to obtain legal advice or
assistance regarding the request; or
``(iii) other persons as permitted by the head of the
government agency authorized to conduct investigations of
intelligence or counterintelligence activities or analysis
related to international terrorism, or a designee.
``(B) Nondisclosure requirement.--A person to whom
disclosure is made under subparagraph (A) shall be subject to
the nondisclosure requirements applicable to a person to whom
a request is issued under subsection (a) in the same manner
as the person to whom the request is issued.
``(C) Notice.--Any recipient that discloses to a person
described in subparagraph (A) information otherwise subject
to a nondisclosure requirement shall inform the person of the
applicable nondisclosure requirement.
``(3) Extension.--The head of a government agency
authorized to conduct investigations of intelligence or
counterintelligence activities or analysis related to
international terrorism, or a designee, may extend a
nondisclosure requirement for additional periods of not
longer than 1 year if, at the time of each extension, a new
certification is made under paragraph (1)(B) and notice is
provided to the recipient of the applicable request that the
nondisclosure requirement has been extended and the recipient
has the right to judicial review of the nondisclosure
requirement.
``(4) Right to judicial review.--
``(A) In general.--A consumer reporting agency that
receives a request under subsection (a) shall have the right
to judicial review of any applicable nondisclosure
requirement and any extension thereof.
``(B) Timing.--
``(i) In general.--A request under subsection (a) shall
state that if the recipient wishes to have a court review a
nondisclosure requirement, the recipient shall notify the
Government not later than 21 days after the date of receipt
of the request.
``(ii) Extension.--A notice that the applicable
nondisclosure requirement has been extended under paragraph
(3) shall state that if the recipient wishes to have a court
review the nondisclosure requirement, the recipient shall
notify the Government not later than 21 days after the date
of receipt of the notice.
``(C) Initiation of proceedings.--If a recipient of a
request under subsection (a) makes a notification under
subparagraph (B), the Government shall initiate judicial
review under the procedures established in section 3511 of
title 18, United States Code.
``(5) Termination.--If the facts supporting a nondisclosure
requirement cease to exist prior to the applicable time
period of the nondisclosure requirement, an appropriate
official of the government agency authorized to conduct
investigations of intelligence or counterintelligence
activities or analysis related to international terrorism
shall promptly notify the consumer reporting agency, or
officer, employee, or agent thereof, subject to the
nondisclosure requirement that the nondisclosure requirement
is no longer in effect.''.
(d) Financial Records.--Section 1114(a)(5) of the Right to
Financial Privacy Act (12 U.S.C. 3414(a)(5)) is amended by
striking subparagraph (D) and inserting the following:
``(D) Prohibition of certain disclosure.--
``(i) Prohibition.--
``(I) In general.--If a certification is issued under
subclause (II) and notice of the right to judicial review
under clause (iv) is provided, no financial institution, or
officer, employee, or agent thereof, that receives a request
under subparagraph (A), shall disclose to any person the
particular information specified in the certification during
the time period to which the certification applies, which may
be not longer than 1 year.
``(II) Certification.--The requirements of subclause (I)
shall apply if the Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a Bureau field
office, certifies that, absent a prohibition of disclosure
under this subparagraph, there may result--
``(aa) a danger to the national security of the United
States;
``(bb) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(cc) interference with diplomatic relations; or
``(dd) danger to the life or physical safety of any person.
``(ii) Exception.--
``(I) In general.--A financial institution, or officer,
employee, or agent thereof, that receives a request under
subparagraph (A) may disclose information otherwise subject
to any applicable nondisclosure requirement to--
``(aa) those persons to whom disclosure is necessary in
order to comply with the request;
``(bb) an attorney in order to obtain legal advice or
assistance regarding the request; or
``(cc) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(II) Nondisclosure requirement.--A person to whom
disclosure is made under subclause (I) shall be subject to
the nondisclosure requirements applicable to a person to whom
a request is issued under subparagraph (A) in the same manner
as the person to whom the request is issued.
``(III) Notice.--Any recipient that discloses to a person
described in subclause (I) information otherwise subject to a
nondisclosure requirement shall inform the person of the
applicable nondisclosure requirement.
``(iii) Extension.--The Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank shall
be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge in a Bureau field
office, may extend a nondisclosure requirement for additional
periods
[[Page S9678]]
of not longer than 1 year if, at the time of each extension,
a new certification is made under clause (i)(II) and notice
is provided to the recipient of the applicable request that
the nondisclosure requirement has been extended and the
recipient has the right to judicial review of the
nondisclosure requirement.
``(iv) Right to judicial review.--
``(I) In general.--A financial institution that receives a
request under subparagraph (A) shall have the right to
judicial review of any applicable nondisclosure requirement
and any extension thereof.
``(II) Timing.--
``(aa) In general.--A request under subparagraph (A) shall
state that if the recipient wishes to have a court review a
nondisclosure requirement, the recipient shall notify the
Government not later than 21 days after the date of receipt
of the request.
``(bb) Extension.--A notice that the applicable
nondisclosure requirement has been extended under clause
(iii) shall state that if the recipient wishes to have a
court review the nondisclosure requirement, the recipient
shall notify the Government not later than 21 days after the
date of receipt of the notice.
``(III) Initiation of proceedings.--If a recipient of a
request under subparagraph (A) makes a notification under
subclause (II), the Government shall initiate judicial review
under the procedures established in section 3511 of title 18,
United States Code.
``(v) Termination.--If the facts supporting a nondisclosure
requirement cease to exist prior to the applicable time
period of the nondisclosure requirement, an appropriate
official of the Federal Bureau of Investigation shall
promptly notify the financial institution, or officer,
employee, or agent thereof, subject to the nondisclosure
requirement that the nondisclosure requirement is no longer
in effect.''.
(e) Requests by Authorized Investigative Agencies.--Section
802 of the National Security Act of 1947 (50 U.S.C. 436), is
amended by striking subsection (b) and inserting the
following:
``(b) Prohibition of Certain Disclosure.--
``(1) Prohibition.--
``(A) In general.--If a certification is issued under
subparagraph (B) and notice of the right to judicial review
under paragraph (4) is provided, no governmental or private
entity, or officer, employee, or agent thereof, that receives
a request under subsection (a), shall disclose to any person
the particular information specified in the certification
during the time period to which the certification applies,
which may be not longer than 1 year.
``(B) Certification.--The requirements of subparagraph (A)
shall apply if the head of an authorized investigative agency
described in subsection (a), or a designee, certifies that,
absent a prohibition of disclosure under this subsection,
there may result--
``(i) a danger to the national security of the United
States;
``(ii) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(iii) interference with diplomatic relations; or
``(iv) danger to the life or physical safety of any person.
``(2) Exception.--
``(A) In general.--A governmental or private entity, or
officer, employee, or agent thereof, that receives a request
under subsection (a) may disclose information otherwise
subject to any applicable nondisclosure requirement to--
``(i) those persons to whom disclosure is necessary in
order to comply with the request;
``(ii) an attorney in order to obtain legal advice or
assistance regarding the request; or
``(iii) other persons as permitted by the head of the
authorized investigative agency described in subsection (a).
``(B) Nondisclosure requirement.--A person to whom
disclosure is made under subparagraph (A) shall be subject to
the nondisclosure requirements applicable to a person to whom
a request is issued under subsection (a) in the same manner
as the person to whom the request is issued.
``(C) Notice.--Any recipient that discloses to a person
described in subparagraph (A) information otherwise subject
to a nondisclosure requirement shall inform the person of the
applicable nondisclosure requirement.
``(3) Extension.--The head of an authorized investigative
agency described in subsection (a), or a designee, may extend
a nondisclosure requirement for additional periods of not
longer than 1 year if, at the time of each extension, a new
certification is made under paragraph (1)(B) and notice is
provided to the recipient of the applicable request that the
nondisclosure requirement has been extended and the recipient
has the right to judicial review of the nondisclosure
requirement.
``(4) Right to judicial review.--
``(A) In general.--A governmental or private entity that
receives a request under subsection (a) shall have the right
to judicial review of any applicable nondisclosure
requirement and any extension thereof.
``(B) Timing.--
``(i) In general.--A request under subsection (a) shall
state that if the recipient wishes to have a court review a
nondisclosure requirement, the recipient shall notify the
Government not later than 21 days after the date of receipt
of the request.
``(ii) Extension.--A notice that the applicable
nondisclosure requirement has been extended under paragraph
(3) shall state that if the recipient wishes to have a court
review the nondisclosure requirement, the recipient shall
notify the Government not later than 21 days after the date
of receipt of the notice.
``(C) Initiation of proceedings.--If a recipient of a
request under subsection (a) makes a notification under
subparagraph (B), the Government shall initiate judicial
review under the procedures established in section 3511 of
title 18, United States Code.
``(5) Termination.--If the facts supporting a nondisclosure
requirement cease to exist prior to the applicable time
period of the nondisclosure requirement, an appropriate
official of the authorized investigative agency described in
subsection (a) shall promptly notify the governmental or
private entity, or officer, employee, or agent thereof,
subject to the nondisclosure requirement that the
nondisclosure requirement is no longer in effect.''.
SEC. 6. JUDICIAL REVIEW OF FISA ORDERS AND NATIONAL SECURITY
LETTERS.
(a) FISA.--Section 501(f)(2) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(f)(2)) is amended--
(1) in subparagraph (A)--
(A) in clause (i)--
(i) by striking ``a production order'' and inserting ``a
production order or nondisclosure order''; and
(ii) by striking ``Not less than 1 year'' and all that
follows;
(B) in clause (ii), by striking ``production order or
nondisclosure''; and
(2) in subparagraph (C)--
(A) by striking clause (ii); and
(B) by redesignating clause (iii) as clause (ii).
(b) Judicial Review of National Security Letters.--Section
3511(b) of title 18, United States Code, is amended to read
as follows:
``(b) Nondisclosure.--
``(1) In general.--
``(A) Notice.--If a recipient of a request or order for a
report, records, or other information under section 2709 of
this title, section 626 or 627 of the Fair Credit Reporting
Act (15 U.S.C. 1681u and 1681v), section 1114 of the Right to
Financial Privacy Act (12 U.S.C. 3414), or section 802 of the
National Security Act of 1947 (50 U.S.C. 436), wishes to have
a court review a nondisclosure requirement imposed in
connection with the request, the recipient shall notify the
Government not later than 21 days after the date of receipt
of the request or of notice that an applicable nondisclosure
requirement has been extended.
``(B) Application.--Not later than 21 days after the date
of receipt of a notification under subparagraph (A), the
Government shall apply for an order prohibiting the
disclosure of particular information about the existence or
contents of the relevant request or order. An application
under this subparagraph may be filed in the district court of
the United States for any district within which the
authorized investigation that is the basis for the request or
order is being conducted. The applicable nondisclosure
requirement shall remain in effect during the pendency of
proceedings relating to the requirement.
``(C) Consideration.--A district court of the United States
that receives an application under subparagraph (B) should
rule expeditiously, and may issue a nondisclosure order for a
period of not longer than 1 year, unless the facts justify a
longer period of nondisclosure.
``(D) Denial.--If a district court of the United States
rejects an application for a nondisclosure order or extension
thereof, the nondisclosure requirement shall no longer be in
effect.
``(2) Application contents.--An application for a
nondisclosure order or extension thereof under this
subsection shall include--
``(A) a statement of the facts indicating that, absent a
prohibition of disclosure under this subsection, there may
result--
``(i) a danger to the national security of the United
States;
``(ii) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(iii) interference with diplomatic relations; or
``(iv) danger to the life or physical safety of any person;
and
``(B) the time period during which the Government believes
the nondisclosure requirement should apply.
``(3) Standard.--A district court of the United States may
issue a nondisclosure requirement order or extension thereof
under this subsection if the court determines that there is
reason to believe that disclosure of the information subject
to the nondisclosure requirement during the applicable time
period will result in--
``(A) a danger to the national security of the United
States;
``(B) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(C) interference with diplomatic relations; or
``(D) danger to the life or physical safety of any person.
``(4) Renewal.--A nondisclosure order under this subsection
may be renewed for additional periods of not longer than 1
year, unless the facts of the case justify a longer period of
nondisclosure, upon submission of an application meeting the
requirements of
[[Page S9679]]
paragraph (2), and a determination by the court that the
circumstances described in paragraph (3) continue to
exist.''.
(c) Minimization.--Section 501(g) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is
amended--
(1) in paragraph (1), by striking ``Not later than'' and
all that follows and inserting ``At or before the end of the
period of time for the production of tangible things under an
order approved under this section or at any time after the
production of tangible things under an order approved under
this section, a judge may assess compliance with the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
acquired, retained, or disseminated.''; and
(2) in paragraph (2)(A), by inserting ``acquisition and''
after ``to minimize the''.
SEC. 7. CERTIFICATION FOR ACCESS TO TELEPHONE TOLL AND
TRANSACTIONAL RECORDS.
(a) In General.--Section 2709(b)(1) of title 18, United
States Code, is amended--
(1) by striking ``certifies in writing'' and inserting
``provides a written certification by the Director (or a
designee)''; and
(2) by inserting ``that includes a statement of facts
showing that there are reasonable grounds to believe'' before
``that the name,''.
(b) Identity of Financial Institutions and Credit
Reports.--Section 626 of the Fair Credit Reporting Act (15
U.S.C. 1681u) is amended--
(1) in subsection (a), by striking ``has determined in
writing, that such information is sought for'' and inserting
``provides to the consumer reporting agency a written
determination that includes a statement of facts showing that
there are reasonable grounds to believe that such information
is relevant to''; and
(2) in subsection (b), by striking ``has determined in
writing that such information is sought for'' and inserting
``provides to the consumer reporting agency a written
determination that includes a statement of facts showing that
there are reasonable grounds to believe that such information
is relevant to''.
(c) Disclosures to Governmental Agencies for
Counterterrorism Purposes.--Section 627(a) of the Fair Credit
Reporting Act (15 U.S.C. 1681v(a)) is amended by inserting
``that includes a statement of facts showing that there are
reasonable grounds to believe'' before ``that such
information is necessary for''.
(d) Financial Records.--Section 1114(a)(5)(A) of the Right
to Financial Privacy Act (12 U.S.C. 3414(a)(5)(A)) is
amended--
(1) by striking ``certifies in writing'' and inserting
``provides a written certification by the Director (or a
designee)''; and
(2) by striking ``that such records are sought for foreign
counter intelligence purposes'' and inserting ``that includes
a statement of facts showing that there are reasonable
grounds to believe that such records are relevant to a
foreign counterintelligence investigation''.
(e) Requests by Authorized Investigative Agencies.--Section
802(a)(3) of the National Security Act of 1947 (50 U.S.C.
436(a)(3)), is amended--
(1) by redesignating subparagraphs (B), (C), and (D) as
subparagraphs (C), (D), and (E), respectively; and
(2) by inserting after subparagraph (A) the following:
``(B) shall include a statement of facts showing that there
are reasonable grounds to believe, based on credible
information, that the person is, or may be, disclosing
classified information in an unauthorized manner to a foreign
power or agent of a foreign power;''.
SEC. 8. PUBLIC REPORTING ON NATIONAL SECURITY LETTERS.
Section 118(c) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (18 U.S.C. 3511 note) is
amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by striking
``concerning different United States persons''; and
(B) in subparagraph (A), by striking ``, excluding the
number of requests for subscriber information'';
(2) by redesignating paragraph (2) as paragraph (3); and
(3) by inserting after paragraph (1) the following:
``(2) Content.--
``(A) In general.--Except as provided in subparagraph (B),
each report required under this subsection shall include the
total number of requests described in paragraph (1) requiring
disclosure of information concerning--
``(i) United States persons;
``(ii) persons who are not United States persons;
``(iii) persons who are the subjects of authorized national
security investigations; or
``(iv) persons who are not the subjects of authorized
national security investigations.
``(B) Exception.--With respect to the number of requests
for subscriber information under section 2709 of title 18,
United States Code, a report required under this subsection
need not provide information separated into each of the
categories described in subparagraph (A).''.
SEC. 9. PUBLIC REPORTING ON THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT.
Section 601 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1871) is amended--
(1) by redesignating subsections (b) through (e) as
subsections (c) through (f), respectively;
(2) by inserting after subsection (a) the following:
``(b) Public Report.--The Attorney General shall make
publicly available the portion of each report under
subsection (a) relating to paragraphs (1) and (2) of
subsection (a).''; and
(3) in subsection (e), as so redesignated, by striking
``subsection (c)'' and inserting ``subsection (d)''.
SEC. 10. AUDITS.
(a) Tangible Things.--Section 106A of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109-
177; 120 Stat. 200) is amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking ``2006'' and inserting
``2012''; and
(B) in paragraph (5)(C), by striking ``calendar year 2006''
and inserting ``each of calendar years 2006 through 2012'';
(2) in subsection (c), by adding at the end the following:
``(3) Calendar years 2007 and 2008.--Not later than
December 31, 2010, the Inspector General of the Department of
Justice shall submit to the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the House
of Representatives and the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate a report
containing the results of the audit conducted under this
section for calendar years 2007 and 2008.
``(4) Calendar years 2009 through 2012.--Not later than
December 31, 2011, and every year thereafter through 2013,
the Inspector General of the Department of Justice shall
submit to the Committee on the Judiciary and the Permanent
Select Committee on Intelligence of the House of
Representatives and the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate a report
containing the results of the audit conducted under this
section for the previous calendar year.'';
(3) in subsection (d)--
(A) in paragraph (1), by striking ``or (c)(2)'' and
inserting ``(c)(2), (c)(3), or (c)(4)''; and
(B) in paragraph (2), by striking ``and (c)(2)'' and
inserting ``(c)(2), (c)(3), or (c)(4)''; and
(4) in subsection (e), by striking ``and (c)(2)'' and
inserting ``(c)(2), (c)(3), or (c)(4)''.
(b) National Security Letters.--Section 119 of the USA
PATRIOT Improvement and Reauthorization Act of 2005 (Public
Law 109-177; 120 Stat. 219) is amended--
(1) in subsection (b)(1), by striking ``2006'' and
inserting ``2012'';
(2) in subsection (c), by adding at the end the following:
``(3) Calendar years 2007 and 2008.--Not later than
December 31, 2010, the Inspector General of the Department of
Justice shall submit to the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the House
of Representatives and the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate a report
containing the results of the audit conducted under this
section for calendar years 2007 and 2008.
``(4) Calendar years 2009 through 2012.--Not later than
December 31, 2011, and every year thereafter through 2013,
the Inspector General of the Department of Justice shall
submit to the Committee on the Judiciary and the Permanent
Select Committee on Intelligence of the House of
Representatives and the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate a report
containing the results of the audit conducted under this
section for the previous calendar year.'';
(3) in subsection (d)--
(A) in paragraph (1), by striking ``or (c)(2)'' and
inserting ``(c)(2), (c)(3), or (c)(4)''; and
(B) in paragraph (2), by striking ``or (c)(2)'' and
inserting ``(c)(2), (c)(3), or (c)(4)''; and
(4) in subsection (e), by striking ``or (c)(2)'' and
inserting ``(c)(2), (c)(3), or (c)(4)''.
(c) Pen Registers and Trap and Trace Devices.--
(1) Audits.--The Inspector General of the Department of
Justice shall perform comprehensive audits of the
effectiveness and use, including any improper or illegal use,
of pen registers and trap and trace devices under title IV of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1841 et seq.) during the period beginning on January 1, 2007
and ending on December 31, 2012.
(2) Requirements.--The audits required under paragraph (1)
shall include--
(A) an examination of each instance in which the Attorney
General or any other attorney for the Government submitted an
application for an order or extension of an order under title
IV of the Foreign Intelligence Surveillance Act of 1978,
including whether the court granted, modified, or denied the
application (including an examination of the basis for any
modification or denial);
(B) an examination of each instance in which the Attorney
General authorized the installation and use of a pen register
or trap and trace device on an emergency basis under section
403 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1843);
(C) whether the Federal Bureau of Investigation requested
that the Department of Justice submit an application for an
order or extension of an order under title IV of the Foreign
Intelligence Surveillance Act of 1978 and the request was not
submitted to the court (including an examination of the basis
for not submitting the application);
[[Page S9680]]
(D) whether bureaucratic or procedural impediments to the
use of pen registers and trap and trace devices under title
IV of the Foreign Intelligence Surveillance Act of 1978
prevent the Federal Bureau of Investigation from taking full
advantage of the authorities provided under that title;
(E) any noteworthy facts or circumstances relating to the
use of a pen register or trap and trace device under title IV
of the Foreign Intelligence Surveillance Act of 1978,
including any improper or illegal use of the authority
provided under that title; and
(F) an examination of the effectiveness of the authority
under title IV of the Foreign Intelligence Surveillance Act
of 1978 as an investigative tool, including--
(i) the importance of the information acquired to the
intelligence activities of the Federal Bureau of
Investigation or any other department or agency of the
Federal Government;
(ii) the manner in which the information is collected,
retained, analyzed, and disseminated by the Federal Bureau of
Investigation, including any direct access to the information
provided to any other department, agency, or instrumentality
of Federal, State, local, or tribal governments or any
private sector entity;
(iii) with respect to calendar years 2010 through 2012, an
examination of the minimization procedures used in relation
to pen registers and trap and trace devices under title IV of
the Foreign Intelligence Surveillance Act of 1978 and whether
the minimization procedures protect the constitutional rights
of United States persons;
(iv) whether, and how often, the Federal Bureau of
Investigation used information acquired under a pen register
or trap and trace device under title IV of the Foreign
Intelligence Surveillance Act of 1978 to produce an
analytical intelligence product for distribution within the
Federal Bureau of Investigation, to the intelligence
community (as defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4))), or to other
Federal, State, local, or tribal government departments,
agencies, or instrumentalities; and
(v) whether, and how often, the Federal Bureau of
Investigation provided information acquired under a pen
register or trap and trace device under title IV of the
Foreign Intelligence Surveillance Act of 1978 to law
enforcement authorities for use in criminal proceedings.
(3) Submission dates.--
(A) Prior years.--Not later than December 31, 2010, the
Inspector General of the Department of Justice shall submit
to the Committee on the Judiciary and the Select Committee on
Intelligence of the Senate and the Committee on the Judiciary
and the Permanent Select Committee on Intelligence of the
House of Representatives a report containing the results of
the audit conducted under this section for calendar years
2007 thorough 2009.
(B) Calendar years 2010 through 2012.--Not later than
December 31, 2011, and every year thereafter through 2013,
the Inspector General of the Department of Justice shall
submit to the Committee on the Judiciary and the Select
Committee on Intelligence of the Senate and the Committee on
the Judiciary and the Permanent Select Committee on
Intelligence of the House of Representatives a report
containing the results of the audit conducted under this
section for the previous calendar year.
(4) Prior notice to attorney general and director of
national intelligence; comments.--
(A) Notice.--Not less than 30 days before the submission of
a report under subparagraph (A) or (B) of paragraph (3), the
Inspector General of the Department of Justice shall provide
the report to the Attorney General and the Director of
National Intelligence.
(B) Comments.--The Attorney General or the Director of
National Intelligence may provide such comments to be
included in a report submitted under subparagraph (A) or (B)
of paragraph (3) as the Attorney General or the Director of
National Intelligence may consider necessary.
(5) Unclassified form.--A report submitted under
subparagraph (A) or (B) of paragraph (3) and any comments
included under paragraph (4)(B) shall be in unclassified
form, but may include a classified annex.
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