111th Congress Rept. 111-382
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
USA PATRIOT AMENDMENTS ACT OF 2009
_______
December 16, 2009.--Ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3845]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 3845) to extend and modify authorities needed to combat
terrorism and protect civil liberties, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 11
Background and Need for the Legislation.......................... 11
Hearings......................................................... 21
Committee Consideration.......................................... 22
Committee Votes.................................................. 22
Committee Oversight Findings..................................... 30
New Budget Authority and Tax Expenditures........................ 30
Congressional Budget Office Cost Estimate........................ 30
Performance Goals and Objectives................................. 32
Constitutional Authority Statement............................... 32
Advisory on Earmarks............................................. 32
Section-by-Section Analysis...................................... 32
Changes in Existing Law Made by the Bill, as Reported............ 36
Dissenting Views................................................. 63
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``USA PATRIOT
Amendments Act of 2009''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--USA PATRIOT ACT RELATED AMENDMENTS
Sec. 101. Roving wiretaps.
Sec. 102. Extension of sunset of sections 206 and 215 of USA PATRIOT
Act.
Sec. 103. Access to certain tangible things under section 501 of the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Sunset relating to individual terrorists as agents of foreign
powers.
Sec. 105. Audits.
Sec. 106. Criminal ``sneak and peek'' searches.
Sec. 107. Orders for pen registers and trap and trace devices for
foreign intelligence purposes.
Sec. 108. Public reporting on the Foreign Intelligence Surveillance Act
of 1978.
Sec. 109. Challenges to nationwide orders for electronic evidence.
Sec. 110. Report on civil liberties and privacy protections.
TITLE II--NATIONAL SECURITY LETTER REFORM
Sec. 201. Short title.
Sec. 202. Sunset.
Sec. 203. National security letter defined.
Sec. 204. Modification of standard.
Sec. 205. Notification of right to judicial review of nondisclosure
order.
Sec. 206. Disclosure for law enforcement purposes.
Sec. 207. Judicial review of national security letter nondisclosure
order.
Sec. 208. Minimization.
Sec. 209. Public reporting on National Security Letters.
TITLE III--GENERAL PROVISIONS
Sec. 301. Sense of Congress on level of classification of certain
programs.
TITLE I--USA PATRIOT ACT RELATED AMENDMENTS
SEC. 101. ROVING WIRETAPS.
Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by striking ``finds, based
upon specific facts'' and inserting ``finds--
``(i) that the target of the application is
a foreign power, as defined in paragraph (1),
(2), (3), or (6) of section 101(a), an agent of
such a foreign power, or a specific individual;
and
``(ii) based upon specific facts''.
SEC. 102. EXTENSION OF SUNSET OF SECTIONS 206 AND 215 OF USA PATRIOT
ACT.
Section 102(b)(1) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (18 U.S.C. 2510 note) is amended by
striking ``December 31, 2009'' and inserting ``December 31, 2013''.
SEC. 103. ACCESS TO CERTAIN TANGIBLE THINGS UNDER SECTION 501 OF THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Factual Basis for and Issuance of Orders.--
(1) In general.--Section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) is amended--
(A) in the section heading, by striking ``CERTAIN
BUSINESS RECORDS'' and inserting ``TANGIBLE THINGS'';
and
(B) in subsection (b)(2)(A)--
(i) by striking ``a statement of facts
showing'' and inserting ``a statement of the
facts and circumstances relied upon by the
applicant to justify the belief of the
applicant''; and
(ii) by striking ``clandestine intelligence
activities'' and all that follows and inserting
``clandestine intelligence activities;''.
(2) Technical and conforming amendments.--
(A) 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''.
(B) 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 and
international terrorism investigations.''.
(b) Judicial Review of FISA Orders.--Section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended--
(1) in subsection (c)(2)--
(A) in subparagraph (D) by striking ``things; and''
and inserting ``things;'';
(B) in subparagraph (E), by striking ``subsection
(a).'' and inserting ``subsection (a); and''; and
(C) by adding at the end the following new
subparagraph:
``(F) shall direct the applicant to provide notice
to each person receiving such order of--
``(i) the right to challenge the legality
of a production order or nondisclosure order by
filing a petition in accordance with subsection
(f); and
``(ii) the procedures to follow to file
such petition in accordance with such
subsection.''; and
(2) in subsection (f)(2)--
(A) in subparagraph (A)--
(i) 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;
(ii) in clause (ii), by striking
``production order or nondisclosure''; and
(B) in subparagraph (C)--
(i) by striking clause (ii); and
(ii) by redesignating clause (iii) as
clause (ii).
(c) Minimization Procedures.--Section 501(g) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting after paragraph (1) the following new
paragraph:
``(2) Compliance assessment.--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 such order, a judge may
assess compliance with the minimization procedures required to
be followed under such order by reviewing the circumstances
under which information concerning United States persons was
retained or disseminated.''.
(d) Requirements for Orders for Certain Records From Libraries.--
Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) is amended--
(1) in subsection (b)(2)--
(A) by redesignating subparagraph (B) as
subparagraph (C); and
(B) by inserting after subparagraph (A) the
following new subparagraph:
``(B) if the records sought contain bookseller
information, or are from a library (as defined in
section 213(1) of the Library Services and Technology
Act (20 U.S.C. 9122(1))) and contain personally
identifiable information about a patron of such
library, a statement of specific and articulable facts
showing that there are reasonable grounds to believe
that the records 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 who is the subject of such
authorized investigation; and''; and
(2) by adding at the end the following new subsection:
``(i) Bookseller Information Defined.--In this section, the term
`bookseller information' means personally identifiable information
concerning the purchase (including subscription purchases) or rental of
books, journals, or magazines, whether in print or digitally.''.
SEC. 104. SUNSET RELATING TO INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN
POWERS.
Section 6001(b) of the Intelligence Reform and Terrorism Prevention
Act of 2004 (50 U.S.C. 1801 note; Public Law 108-458) is amended--
(1) in paragraph (1)--
(A) by striking ``the amendment made by subsection
(a) shall cease to have effect'' and inserting
``effective''; and
(B) by striking the period and inserting ``--
``(A) subparagraph (C) of section 101(b)(1) of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(1)) is repealed;
``(B) subparagraphs (D) and (E) of such section are
redesignated as subparagraphs (C) and (D),
respectively;
``(C) paragraph (2) of section 601(a) of such Act
(50 U.S.C. 1871(a)) is repealed; and
``(D) paragraphs (3), (4), and (5) of such section
are redesignated as paragraphs (2), (3), and (4),
respectively.''; and
(2) in paragraph (2)--
(A) by striking ``Exception.--With respect to'' and
inserting ``Exception.--
``(A) Existing investigations.--With respect to'';
and
(B) by adding at the end the following new
subparagraph:
``(B) Reports.--Notwithstanding the repeals made by
paragraph (1), the first report required under section
601(a) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1871(a)) that is submitted after the
effective date of such repeals shall include the number
of individuals covered by an order issued pursuant to
section 101(b)(1)(C) of such Act (as in effect on the
day before such effective date).''.
SEC. 105. 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 ``2013''; and
(B) in paragraph (5)(C), by striking ``calendar
year 2006'' and inserting ``each of calendar years 2006
through 2013'';
(2) in subsection (c), by adding at the end the following:
``(3) Calendar years 2007 through 2009.--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 through 2009.
``(4) Calendar years 2010 through 2013.--Not later than
December 31, 2011, and annually thereafter until December 31,
2014, 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 preceding 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 ``2013'';
(2) in subsection (c), by adding at the end the following:
``(3) Calendar years 2007 through 2009.--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 through 2009.
``(4) Calendar years 2010 through 2013.--Not later than
December 31, 2011, and annually thereafter until December 31,
2014, 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 by the Federal Government, 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.) and section 3122 of title 18, United
States Code, 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);
(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 2013.--Not later
than December 31, 2011, and annually thereafter until
December 31, 2014, 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.
SEC. 106. CRIMINAL ``SNEAK AND PEEK'' SEARCHES.
Section 3103a of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking ``may have an
adverse result (as defined in section 2705, except if
the adverse results consist only of unduly delaying a
trial)'' and inserting ``may endanger the life or
physical safety of an individual, result in flight from
prosecution, result in the destruction of or tampering
with the evidence sought under the warrant, or result
in intimidation of potential witnesses, or is likely to
otherwise seriously jeopardize an investigation or
unduly delay a trial''; and
(B) in paragraph (3), by striking ``30 days'' and
all that follows and inserting ``7 days after the date
of its execution.''; and
(2) in subsection (c), by striking ``for good cause shown''
and all that follows and inserting ``upon application of the
United States Attorney for the district seeking the delay, for
additional periods of not more than 21 days for each
application, if the court finds, for each application,
reasonable cause to believe that notice of the execution of the
warrant may endanger the life or physical safety of an
individual, result in flight from prosecution, result in the
destruction of or tampering with the evidence sought under the
warrant, or result in intimidation of potential witnesses, or
is likely to otherwise seriously jeopardize an investigation or
unduly delay a trial.''.
SEC. 107. ORDERS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES FOR
FOREIGN INTELLIGENCE PURPOSES.
(a) Application.--Section 402(c) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2)--
(A) by striking ``a certification by the
applicant'' and inserting ``a statement of the facts
relied upon by the applicant to justify the belief of
the applicant''; and
(B) by striking the period at the end and inserting
``; and''; and
(3) by adding at the end the following:
``(3) a statement of proposed minimization procedures.''.
(b) Minimization.--
(1) 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 retention, and
prohibit the dissemination, of nonpublicly available
information known to concern 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 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.''.
(2) Pen registers and trap and trace devices.--Section 402
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1842) is amended--
(A) in subsection (d)(2)--
(i) in subparagraph (C)(i)(VII), by
striking ``; and'' and inserting ``;'';
(ii) in subparagraph (C)(ii)(IV), by
striking the period at the end and inserting
``; and''; and
(iii) by adding at the end the following
new subparagraph:
``(D) shall, if the judge finds that there are
exceptional circumstances, direct that minimization
procedures be followed.''; and
(B) 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 any applicable minimization procedures by
reviewing the circumstances under which information concerning United
States persons was retained or disseminated.''.
(3) Emergencies.--Section 403 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1843) is amended--
(A) by redesignating subsection (c) as subsection
(d); and
(B) 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 minimization procedures be
followed, if appropriate.''.
(4) Use of information.--Section 405(a)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1)) is
amended by inserting ``and the minimization procedures under
this title, if required'' after ``provisions of this section''.
SEC. 108. PUBLIC REPORTING ON THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978.
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
paragraph (1) of such subsection.''; and
(3) in subsection (e), as so redesignated, by striking
``subsection (c)'' and inserting ``subsection (d)''.
SEC. 109. CHALLENGES TO NATIONWIDE ORDERS FOR ELECTRONIC EVIDENCE.
Section 2703 of title 18, United States Code, is amended by adding
at the end the following:
``(h) Judicial Review.--A provider of electronic communication
service or remote computing service may challenge a subpoena, order, or
warrant requiring disclosure of customer communications or records
under this section in--
``(1) the United States district court for the district in
which the order was issued; or
``(2) the United States district court for the district in
which the order was served.''.
SEC. 110. REPORT ON CIVIL LIBERTIES AND PRIVACY PROTECTIONS.
Not later than 180 days after the date of the enactment of this
Act, the President 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 describing--
(1) whether operations conducted pursuant to orders issued
under section 501 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1861) could be modified in a manner that
enhances protections for civil liberties; and
(2) the nature of any potential modifications, the likely
costs of such modifications, any technical challenges, and any
potential impact on such operations.
TITLE II--NATIONAL SECURITY LETTER REFORM
SEC. 201. SHORT TITLE.
This title may be referred to as the ``National Security Letter
Reform Act of 2009''.
SEC. 202. SUNSET.
(a) In General.--Effective on December 31, 2013, the following
provisions of law are amended to read as such provisions read on
October 25, 2001:
(1) Section 2709 of title 18, United States Code.
(2) Section 1114(a)(5) of the Right to Financial Privacy
Act of 1978 (12 U.S.C. 3414(a)(5)).
(3) Subsections (a) and (b) of section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u).
(4) Section 627 of the Fair Credit Reporting Act (15 U.S.C.
1681v).
(5) Section 802 of the National Security Act of 1947 (50
U.S.C. 436).
(b) Transition Provision.--Notwithstanding subsection (a), the
provisions of law referred to in subsection (a), as in effect on
December 30, 2013, 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.
SEC. 203. NATIONAL SECURITY LETTER DEFINED.
In this title, the term ``national security letter'' means a
request for information under one of the following provisions of law:
(1) Section 2709(a) of title 18, United States Code (to
access certain communication service provider records).
(2) Section 1114(a)(5)(A) of the Right to Financial Privacy
Act (12 U.S.C. 3414(a)(5)(A)) (to obtain financial institution
customer records).
(3) Section 626 of the Fair Credit Reporting Act (15 U.S.C.
1681u) (to obtain certain financial information and consumer
reports).
(4) Section 627 of the Fair Credit Reporting Act (15 U.S.C.
1681v) (to obtain credit agency consumer records for
counterterrorism investigations).
(5) Section 802 of the National Security Act of 1947 (50
U.S.C. 436).
SEC. 204. MODIFICATION OF STANDARD.
(a) In General.--A national security letter may not be issued
unless the official having authority under law to issue that letter
documents in a separate writing specific and articulable facts showing
that there are reasonable grounds to believe that the information
sought--
(1) pertains to a foreign power or an agent of a foreign
power;
(2) is relevant to the activities of a suspected agent of a
foreign power that is the subject of such authorized
investigation; or
(3) pertains to an individual in contact with, or
personally known to, a suspected agent of a foreign power that
is the subject of such authorized investigation.
(b) Maintenance.--The agency under whose authority a national
security letter is issued shall maintain a copy of a separate writing
required under subsection (a).
(c) Definitions.--In this section, the terms ``foreign power'' and
``agent of a foreign power'' have the meaning given such terms in
section 101 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801).
SEC. 205. NOTIFICATION OF RIGHT TO JUDICIAL REVIEW OF NONDISCLOSURE
ORDER.
If a recipient of a national security letter is subject to a
nondisclosure requirement imposed in connection with that national
security letter, the official issuing that letter shall, simultaneously
with its issuance, inform the recipient of the right of the recipient
to judicial review of that requirement and that the requirement will
remain in effect during the pendency of any judicial review
proceedings.
SEC. 206. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES.
No information acquired by a national security letter shall be
disclosed for law enforcement purposes unless such disclosure is
accompanied by a statement that such information may only be used in a
criminal proceeding with the advance authorization of the Attorney
General, or a designee of the Attorney General at a level not lower
than Section Chief of a division of the Department of Justice.
SEC. 207. JUDICIAL REVIEW OF NATIONAL SECURITY LETTER NONDISCLOSURE
ORDER.
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.
``(B) Application.--Not later than 30 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 180 days.
``(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 certification from the Attorney General, Deputy
Attorney General, an Assistant Attorney General, or the
Director of the Federal Bureau of Investigation, or in the case
of a request by a department, agency, or instrumentality of the
Federal Government other than the Department of Justice, the
head or deputy head of the department, agency, or
instrumentality, of the existence of a result described in
subparagraphs (A) through (D) and a statement of specific and
articulable facts indicating that, absent a prohibition of
disclosure under this subsection, there may result--
``(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.
``(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 have a result described in paragraph (2).
``(4) Renewal.--A nondisclosure order under this subsection
may be renewed for additional periods of not longer than 180
days each, upon a determination by the court that a result
described in paragraph (2) justifies the renewal.
``(5) Early termination of nondisclosure order.--A
nondisclosure order the Government applied for under paragraph
(1)(B) ceases to have effect when the Government discovers that
the factual basis for that order has ceased to exist and the
Government so informs the order's recipient. The Government
upon making such a discovery shall promptly so informs the
recipient.''.
SEC. 208. MINIMIZATION.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the Attorney General shall--
(1) establish minimization procedures governing the
acquisition, retention, and dissemination by the Federal Bureau
of Investigation of any records received by the Federal Bureau
of Investigation in response to a national security letter; and
(2) 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 copy of the
minimization procedures established under paragraph (1).
(b) Definitions.--In this section--
(1) the term ``minimization procedures'' means--
(A) specific procedures that are reasonably
designed in light of the purpose and technique of a
national security letter, to minimize the acquisition
and retention, and prohibit the dissemination, of
nonpublicly available information concerning
unconsenting United States persons (as defined in
section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801)) 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) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801(e)(1))) shall not be
disseminated in a manner that identifies any United
States person, without the consent of the United States
person, unless the identity of the United States person
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; and
(2) the term ``national security letter'' means a request
for information issued under section 2709 of title 18, United
States Code, section 1114(a)(5) of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414(5)), subsection (a) or (b)
of section 626 of the Fair Credit Reporting Act (15 U.S.C.
1681u), or section 627 of the Fair Credit Reporting Act (15
U.S.C. 1681v).
SEC. 209. 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).''.
TITLE III--GENERAL PROVISIONS
SEC. 301. SENSE OF CONGRESS ON LEVEL OF CLASSIFICATION OF CERTAIN
PROGRAMS.
It is the sense of Congress that the President should periodically
review the level of classification of programs that make use of
national security letters (as defined in section 203 of this Act) or
the authorities under the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) to determine if such programs can be
declassified, in whole or in part, without interfering with an ongoing
investigation or otherwise threatening national security.
Purpose and Summary
H.R. 3845, the ``USA PATRIOT Amendments Act of 2009,''
introduced by Chairman Conyers, Mr. Nadler, Mr. Scott, Mr.
Cohen, Ms. Harman, Ms. Jackson Lee, and Mr. Johnson
reauthorizes two expiring provisions of the USA PATRIOT Act of
2001:\1\ section 206, regarding roving wiretaps, and section
215, regarding orders for tangible things. This bill gives
these provisions a new sunset date of December 31, 2013. It
also makes reforms to section 215 authority and to other
related surveillance and collection authorities, including
national security letters (NSLs), orders for pen register and
trap and trace devices for foreign intelligence purposes, and
criminal ``sneak and peek'' search warrants. Moreover, the bill
enhances the use of audits and reports dealing with the use and
efficacy of these investigative authorities. It does not
reauthorize the ``Lone Wolf'' provision of the Intelligence
Reform and Terrorism Prevention Act of 2004 (IRTPA),\2\
allowing this provision, which has never been used, to sunset
on December 31, 2009. These modifications and reforms seek to
ensure that the government can conduct efficient, thorough, and
effective national security investigations in a manner that
also appropriately protects privacy and civil liberties.
---------------------------------------------------------------------------
\1\Pub. L. 107-56.
\2\Pub. L. 108-458.
---------------------------------------------------------------------------
Background and Need for the Legislation
INTELLIGENCE COLLECTION TOOLS SET TO EXPIRE ON
DECEMBER 31, 2009
Section 206--Roving Wiretaps
Section 206 of the USA PATRIOT Act\3\ amended the Foreign
Intelligence Surveillance Act\4\ (FISA) to allow for multipoint
or ``roving'' wiretaps, which permit the government to include
multiple surveillance sites associated with a facility
authorized in an order of the Foreign Intelligence Surveillance
Court (FISC) if it can show that the target was taking steps to
thwart surveillance. FISA roving authority allows the
government to follow a target that switches communication
facilities without having to return to court and obtain a new
order, thus avoiding the risk of losing valuable foreign
intelligence information during the time required to obtain and
serve a new court order.
---------------------------------------------------------------------------
\3\Pub. L. 107-56, Sec. 206, codified at 50 U.S.C.
Sec. 1805(c)(2)(B) (2008).
\4\Pub. L. 95-511.
---------------------------------------------------------------------------
Before the enactment of section 206, the scope of
electronic surveillance authorized by a FISC order was limited
in two ways. First, the location that was the subject of
surveillance had to be identified.\5\ Second, only specifically
identified third parties could be directed to facilitate
electronic surveillance by the government.\6\ In cases where
the location was unknown, the identity of the person who would
need to assist the government could not be specified in the
order.\7\ Limiting the class of persons who could be directed
to assist the government by a FISC order effectively limited
the reach of FISC orders to known and identifiable
locations.\8\
---------------------------------------------------------------------------
\5\See 50 U.S.C. Sec. 1805(c)(1)(B) (2001) (requiring FISA warrants
to specify the ``nature and location of each of the facilities or
places at which electronic surveillance will be directed'').
\6\See 50 U.S.C. Sec. 1805(c)(2)(B) (2001).
\7\Liu, Amendments to the Foreign Intelligence Surveillance Act Set
to Expire in 2009, CRS Report for Congress, March 16, 2009, at 4
(R40138).
\8\Id.
---------------------------------------------------------------------------
Section 206 of the USA PATRIOT Act amended Section
105(c)(2)(B) of FISA to provide that ``in circumstances where
the Court finds, based on specific facts provided in the
application, that the actions of the target of the application
may have the effect of thwarting the identification of a
specified person,'' a FISA order may direct ``other persons''
to assist with the electronic surveillance.\9\ In a subsequent
technical amendment, the requirement that the order specify the
location of the surveillance was also changed, so that it only
applied if the facilities or places were known.\10\ These
modifications had the effect of allowing FISA orders to direct
unspecified individuals to assist the government in performing
electronic surveillance, thus permitting court orders to
authorize surveillance of places or locations that were unknown
at the time the order was issued.\11\ From a practical
standpoint, if the government first establishes that the target
of electronic surveillance is a foreign power or agent of a
foreign power who is continually switching cell phones in order
to thwart surveillance, a roving FISA order allows the
government to ``follow'' and intercept the target on each new
cell phone number being used, without having to return to court
for a new order directing new individuals to assist the
government in performing the surveillance.
---------------------------------------------------------------------------
\9\50 U.S.C. Sec. 1805(c)(2)(B) (2008).
\10\Pub. L. 107-108, Sec. 314(a)(2)(A).
\11\Liu, Amendments to the Foreign Intelligence Surveillance Act
Set to Expire in 2009, CRS Report for Congress, March 16, 2009, at 5
(R40138).
---------------------------------------------------------------------------
The USA PATRIOT Improvement and Reauthorization Act of 2005
further amended section 206 to require that the FISC be
notified within 10 days after ``surveillance begins to be
directed at any new facility or place.''\12\ Moreover, the FISC
must be informed of the nature and location of each new
facility or place, the facts and circumstances relied upon to
justify the new surveillance, a statement of any proposed
minimization procedures that differ from those contained in the
original application or order, and the total number of
facilities or places subject to surveillance under the
authority of the present order.\13\
---------------------------------------------------------------------------
\12\50 U.S.C. Sec. 1805(c)(3) (2008). This deadline for
notification can be extended to up to 60 days by the FISC upon a
showing of good cause.
\13\Id.
---------------------------------------------------------------------------
Notwithstanding the additional roving wiretap notification
requirements imposed on the government by the USA PATRIOT
Improvement and Reauthorization Act of 2005, various experts
have raised concerns that FISA roving authority--specifically
in the situation where the government only provides a
description (not the actual identity) of a target, and does not
identify all of the facilities or places at which electronic
surveillance is directed--increases the prospect that the
government may intercept communications between individuals who
are not FISA targets. In other words, if the government's
warrant application need not provide either the actual identity
of a target or all of the places and facilities where it will
surveil, then the government could end up surveiling multiple
unrelated people at multiple places who merely fit the target's
description. This potential exists, according to Suzanne
Spaulding, former Democratic Staff Director for the U.S. House
of Representatives Permanent Select Committee on Intelligence
and an Assistant General Counsel at the CIA, because of what
she describes generally as ``less rigorous'' statutory
standards for FISA roving warrants than those governing
issuance of roving wiretap warrants in criminal investigations
under Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended by the Electronic Communications
Privacy Act of 1986.\14\
---------------------------------------------------------------------------
\14\Pub. L. 99-508 Sec. 106(d)(3), codified at 18 U.S.C. 2518(11)
(2008).
---------------------------------------------------------------------------
For example, FISA permits the government to provide ``a
description of the target'' if the identity is not known, where
Title III roving applications must definitively identify the
target of surveillance.\15\ Moreover, Title III explicitly
limits an order authorizing or approving ``roving''
interceptions to ``such time as it is reasonable to presume''
that the person identified in the application is ``reasonably
proximate'' to the communication instrument. Title III also
differs from FISA roving authority by requiring that the target
be notified of surveillance, generally 90 days after the
surveillance ends.\16\ While such notification is
understandably absent in the FISA context, this requirement and
other explicit Title III roving elements not present in FISA
roving authority reduce the likelihood that communications
between unrelated persons would be intercepted.\17\ Ms.
Spaulding, former representative Tom Evans (R-DE), and Mike
German, Policy Counsel for the American Civil Liberties Union
and former FBI Agent, all witnesses at the September 22, 2009,
Subcommittee hearing on the USA PATRIOT Act, urged this
Committee to consider ``tightening'' statutory language, so as
to require a FISA judge to determine that the target has been
described with sufficient particularity to distinguish the
target from other potential users of the instrument or facility
being surveilled.\18\
---------------------------------------------------------------------------
\15\Hearing on the USA PATRIOT Act before the House Judiciary
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th
Cong. (2009) (written statement of Suzanne Spaulding).
\16\Id.
\17\Id.
\18\Hearing on the USA PATRIOT Act before the House Judiciary
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th
Cong. (2009) (written statements of Suzanne Spaulding, former Rep. Tom
Evans, and Mike German).
---------------------------------------------------------------------------
The Committee added language to section 105(c)(2)(B), the
FISA roving wiretap provision (50 U.S.C. Sec. 1805(c)(2)(B)),
to clarify Congressional intent that the government must
describe its roving target with a sufficient degree of
particularity to allow a judge to be able to distinguish the
target from other potential users of places or facilities to be
surveilled. This language is not intended to change current
practice. With these modifications, section 206 is reauthorized
until December 31, 2013.
Section 6001(a) of IRTPA--Lone Wolf
Commonly referred to as the ``Lone Wolf'' provision,
Sec. 6001(a) of the Intelligence Reform and Terrorism
Protection Act (IRTPA), broadened the definition of individuals
who could be FISA targets. It permitted surveillance of non-
U.S. persons preparing to engage in or engaging in
international terrorism, without requiring evidence linking
those persons to an identifiable foreign power or terrorist
organization.\19\ This provision was created in response to the
FBI's attempt to obtain a FISA order to search the laptop of
Zacarias Moussaoui in October, 2001. The FBI believed it had
insufficient information to demonstrate that Moussaoui was an
agent of a foreign power, as required by FISA at the time,
although the term ``foreign power'' included international
terrorist groups.\20\ The FISA Amendments Act of 2008 further
expanded the definition of ``Lone Wolf'' to include any non-
United States person who engages in or prepares to engage in
the international proliferation of weapons of mass destruction,
without requiring evidence linking those persons to an
identifiable foreign power or terrorist organization.\21\
---------------------------------------------------------------------------
\19\Pub. L. 108-458 Sec. 6001(a).
\20\Liu, ``Amendments to the Foreign Intelligence Surveillance Act
Set to Expire in 2009,'' CRS Report for Congress, March 16, 2009 at 3
(R40138).
\21\Pub. L. 110-261 Sec. 110.
---------------------------------------------------------------------------
Critics of the Lone Wolf provision argue that it undermines
the constitutional justification for the entire FISA statute:
that the extraordinary FISA powers used by our government are
constitutional only because they are used against our most
serious adversaries, foreign governments and organized foreign
powers. Accordingly, these critics assert that expanding the
reach of the statute to individuals acting alone puts the whole
FISA statute at risk.\22\ Moreover, critics argue Lone Wolf can
safely be allowed to expire, because a traditional Title III
warrant can be obtained against any individual who fits the
definition of Lone Wolf.\23\ Indeed, Title III warrants must be
used to investigate equally dangerous domestic terrorists, as
Lone Wolf does not apply to United States persons.
---------------------------------------------------------------------------
\22\Hearing on the USA PATRIOT Act before the House Judiciary
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th
Cong. (2009) (written statement of Suzanne Spaulding).
\23\Id.
---------------------------------------------------------------------------
Todd Hinnen, Deputy Assistant Attorney General for the
Justice Department's National Security Division, testified in a
hearing before the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties that the Lone Wolf provision has
never been used.\24\ This admission further demonstrates that
Lone Wolf is not so essential that the inherent compromise of
civil liberties it represents should be allowed to persist in
American law. The bill, therefore, does not reauthorize Lone
Wolf.
---------------------------------------------------------------------------
\24\Id. (testimony of Todd Hinnen).
---------------------------------------------------------------------------
Section 215 Orders--Tangible Evidence Procurement
Section 215 of the USA PATRIOT Act allows the government to
obtain a FISA order requiring private parties to produce
``tangible things'' such as business records that are relevant
to foreign intelligence, counterterrorism, or
counterintelligence investigations.\25\ To issue such an order,
the FISA judge or appropriately designated magistrate judge\26\
need only find that the FBI has made ``a statement of facts
showing that there are reasonable grounds to believe that the
tangible things sought are relevant to an authorized
investigation . . . to obtain foreign intelligence information
not concerning a United States person or to protect against
international terrorism or clandestine intelligence activities,
provided that such investigation of a United States person is
not conducted solely upon the basis of activities protected by
the First Amendment.''\27\ Upon such finding, the order must
issue.\28\ Such orders may not disclose their purpose,\29\
however, and those receiving them may not disclose their
existence.\30\ This last provision is often referred to as a
``gag rule.''
---------------------------------------------------------------------------
\25\50 U.S.C. Sec. 1861(a)(1). Section 1861 is titled, ``Access to
certain business records for foreign intelligence and international
terrorism investigations,'' suggesting that the ``tangible things'' it
describes may only be of the business sort. However, titles of statutes
(or their subsections) are traditionally of weak interpretive value to
courts.
\26\United States Magistrate Judges (under chapter 43 of title 28)
can be publicly designated by the Chief Justice of the United States to
have the power hear applications and grant orders for the production of
tangible things. See 50 U.S.C. Sec. 1861(b)(1)(B).
\27\50 U.S.C. Sec. 1861(b)(2)(A).
\28\50 U.S.C. Sec. 1861(c)(1) (``[I]f the judge finds that the
application meets the requirements of subsections (a) and (b) of this
section, the judge shall enter an ex parte order as requested, or as
modified, approving the release of tangible things.'' (emphasis
added)).
\29\50 U.S.C. Sec. 1861(c)(2)(E).
\30\50 U.S.C. Sec. 1861(d).
---------------------------------------------------------------------------
In support of reauthorization of section 215, the
Department of Justice has represented that, based on its
operational experience, there will continue to be instances in
which FBI investigators need to obtain transactional
information that does not fall within the scope of authorities
relating to NSLs, and where they must operate in an environment
that precludes the use of less secure criminal authorities.\31\
DOJ further indicates that for the period 2004-2007, the FISC
issued about 220 orders to produce business records.\32\ Of
these, 173 orders were issued in 2004-2006 in combination with
FISA pen register orders to address an anomaly in the statutory
language that prevented the acquisition of subscriber
information ordinarily associated with pen register
information.\33\ Congress corrected this deficiency in the pen
register provision in 2006 in the USA PATRIOT Improvement and
Reauthorization Act, making this use of business records
authority unnecessary.\34\ The remaining business records
orders issued between 2004 and 2007 were used to obtain
transactional information that did not fall within the scope of
any other national security investigative authority (such as an
NSL).\35\ Some of these orders were used to support sensitive
intelligence collections.\36\
---------------------------------------------------------------------------
\31\Department of Justice letter to the Honorable Patrick J. Leahy
(September 14, 2009).
\32\Id.
\33\Id.
\34\Id.
\35\Id.
\36\Id.
---------------------------------------------------------------------------
In 1998, Congress first amended FISA to provide access to
certain records that were not available through NSLs.
Specifically, new section 501 created a mechanism for Federal
investigators to compel the production of records from common
carriers, public accommodation facilities, storage facilities,
and vehicle rental facilities.\37\ The FISC would issue an
order if, among other things, the application contained
``specific and articulable facts giving reason to believe that
the person to whom the records pertain is a foreign power or an
agent of a foreign power.''\38\
---------------------------------------------------------------------------
\37\50 U.S.C. Sec. 1861(a) (2001).
\38\50 U.S.C. Sec. 1861(b)(2)(B) (2001).
---------------------------------------------------------------------------
In 2001, section 215 of the USA PATRIOT Act made several
changes to the procedures under section 501 of FISA for
obtaining business records.\39\ Prior to enactment of the USA
PATRIOT Act, only records from four specific categories of
businesses could be obtained. Section 215 expanded the scope to
``any tangible things.''\40\
---------------------------------------------------------------------------
\39\Pub. L. 107-56, codified at 50 U.S.C. Sec. 1862(a)-(b) (2008).
\40\50 U.S.C. Sec. 1861(a)(1) (2008).
---------------------------------------------------------------------------
The expanded scope produced strong opposition from the
library community, to the degree that section 215 came to be
known by some as the ``library provision.'' The opposition
stemmed mainly from the chilling effect such access could have
on the exercise of First Amendment rights and purported
intrusions into areas protected by the Fourth Amendment.\41\ In
response to these concerns, the USA PATRIOT Improvement and
Reauthorization Act of 2005 added a requirement that the
application for a section 215 order has to be approved by the
FBI Director, Deputy Director, or Executive Assistant Director
for National Security, if the application seeks ``library
circulation records, library patron lists, book sales records,
book customer lists, firearms sales records, tax return
records, educational records, or medical records containing
information that would identify a person.''\42\
---------------------------------------------------------------------------
\41\Liu, ``Amendments to the Foreign Intelligence Surveillance Act
Set to Expire in 2009,'' CRS Report for Congress, March 16, 2009, at 8
(R40138).
\42\50 U.S.C. Sec. 1861(a)(3) (2008).
---------------------------------------------------------------------------
Section 215 of the USA PATRIOT Act also modified the
standard for issuance of a ``tangible things'' order. Prior to
the enactment of section 215, the government had to make a
showing of ``specific and articulable facts giving reasons to
believe that the person to whom the records pertain[ed] is a
foreign power or an agent of a foreign power.''\43\ Under
section 215 as originally enacted in the USA PATRIOT Act, by
contrast, the applicant only needed to ``specify that the
records concerned [were] sought for an authorized [foreign
intelligence, counterterrorism, or counterintelligence]
investigation.''\44\ In 2005, Congress further amended section
215 to require ``a statement of facts showing that there are
reasonable grounds to believe that the tangible things sought
are relevant to an authorized [foreign intelligence,
counterterrorism, or counterintelligence] investigation.''\45\
Records are presumptively relevant if they pertain to (1) a
foreign power or agent of a foreign power; (2) the activities
of a suspected agent of a foreign power who is the subject of
such authorized investigation; or (3) an individual in contact
with, or known to, a suspected agent of a foreign power who is
the subject of such authorized investigation.\46\
---------------------------------------------------------------------------
\43\50 U.S.C. Sec. 1861(b)(2)(B) (2001).
\44\Pub. L. 107-56 Sec. 215.
\45\Pub. L. 109-177 Sec. 106(b).
\46\Id.
---------------------------------------------------------------------------
Orders issued under section 215 are accompanied by
automatic nondisclosure orders, or gag orders, prohibiting the
recipients from disclosing that the FBI has sought or obtained
tangible things pursuant to a FISA order. The recipient may
only discuss the order with other persons as necessary to
comply with the order, with an attorney to obtain legal advice
or assistance, or with other persons the FBI permits.\47\
---------------------------------------------------------------------------
\47\50 U.S.C. Sec. 1861(d)(1) (2008).
---------------------------------------------------------------------------
In addition to modifying the standard for issuance, The USA
PATRIOT Improvement and Reauthorization Act of 2005 provided
procedures for recipients of section 215 orders to obtain
judicial review of orders compelling the production of business
records.\48\ Once a petition for review is submitted by a
recipient, a FISA judge must determine within 72 hours whether
the petition is frivolous.\49\ If the petition is frivolous, it
must be denied and the order affirmed.\50\ The order may be
modified or set aside if it does not meet the requirements of
FISA or is otherwise unlawful.\51\ Appeals by either party may
be heard by the Foreign Intelligence Court of Review and the
Supreme Court.\52\
---------------------------------------------------------------------------
\48\50 U.S.C. Sec. 1861(f)(2)(A)(i) (2008).
\49\50 U.S.C. Sec. 1861(f)(2)(A)(ii) (2008).
\50\Id.
\51\50 U.S.C. Sec. 1861(f)(2)(B) (2008).
\52\50 U.S.C. Sec. 1861(f)(3) (2008).
---------------------------------------------------------------------------
A recipient must wait 1 year from the date of the section
215 production order to appeal an associated nondisclosure or
``gag'' order.\53\ However, if a high level government official
(to include the Attorney General, the Deputy Attorney General,
an Assistant Attorney General or the Director of the FBI)
certifies that disclosure may endanger the national security of
the United States, such certification is treated as conclusive,
thus automatically defeating the recipient's challenge, unless
a judge finds that the certification was made in bad faith.\54\
---------------------------------------------------------------------------
\53\50 U.S.C. Sec. 1861(f)(2)(A)(i) (2008).
\54\50 U.S.C. Sec. 1861(f)(2)(C)(ii) (2008).
---------------------------------------------------------------------------
As the law has evolved from the requirement that the
government demonstrate ``specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power'' to the more
permissive standard requiring only ``relevance to an authorized
investigation,'' and as section 215 has broadened the scope of
section 501 of FISA from records of four specific types of
businesses to an ability to acquire ``any tangible thing,''
this Committee has reconsidered the appropriateness of such an
expansive collection tool. This collection authority, for
example, currently allows the government to acquire lists of
what library patrons are reading merely by showing relevance to
an authorized investigation. We have heard from experts who
caution that while such broad language may sometimes be
appropriate for the wide-ranging nature of intelligence
collection, it provides greater opportunity for abuses and
mistakes.\55\ Moreover, because section 215 orders come with
compulsory nondisclosure or ``gag orders,'' such abuses are not
easily discovered.
---------------------------------------------------------------------------
\55\Hearing on the USA PATRIOT Act before the House Judiciary
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th
Cong. (2009) (written statement of Suzanne Spaulding).
---------------------------------------------------------------------------
These concerns must be evaluated, however, with the
understanding that, unlike the government's use of NSLs, which
requires no court order, the government obtains a section 215
order from a court. Recognizing the inherent protections
provided by court review, the Committee amends the law to
require the government to provide a statement of facts and
circumstances relied upon by the applicant to justify the
applicant's belief that the tangible things sought are relevant
to the authorized investigation. This modification will
strengthen judicial oversight by ensuring that the government
is presenting a thorough statement of facts for review. The
bill further strengthens judicial oversight by eliminating the
``conclusive certification'' by a high-level government
official that automatically defeats a challenge to a section
215 gag order. The bill also permits these gag orders to be
challenged immediately, removing the 1-year delay under current
law. Additional oversight of section 215 is facilitated though
DOJ Inspector General reports mandated by the bill, and a new
sunset date of December 31, 2013.
The Committee has particular civil liberties concerns with
a such a broad collection standard as it applies to personally
identifiable information concerning the use of libraries and
purchases from booksellers. Indeed, core First Amendment
activities such as reading require careful protection from
government intrusion. The Committee has seen no evidence that
such a broad standard to permit general collection of
information about whatever people are reading is warranted.
At the same time, the Committee recognizes that there may
be specific factual circumstances in a particular investigation
where it could be necessary for the government to obtain access
to such records. To avoid prohibiting access where justified by
a specific, particularized need, the bill amends the law to
allow access if the government can meet a heightened standard
of ``specific and articulable facts'' showing that there are
reasonable grounds to believe that the records sought are
``relevant to an authorized investigation . . . to obtain
foreign intelligence information not concerning a United States
person or to protect against international terrorism or
clandestine intelligence activities'' and ``(I) pertain to a
foreign power or 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 who is the subject of such authorized
investigation.''
The Committee also recognizes that some ``mixed purchase''
records may contain information that falls both inside and
outside of the heightened standard pertaining to libraries or
bookseller information. For example, a single purchase at a
modern superstore may include books and journals, as well as
bomb-making materials. The Committee does not intend for the
heightened library/bookseller information standard to apply to
information that would otherwise be governed by the general
section 215 ``tangible things'' standard merely because such
information happens to be co-mingled with library/bookseller
information in the same records.
As previously indicated, section 215 orders are used to
support sensitive collections. In an effort to ensure that
appropriate consideration is given to civil liberties
protections with respect to these intelligence collections, the
bill calls for the President to report to Congress on whether
the procedures for these collections could be further modified
so as to enhance civil liberties protections without
undermining national security objectives.
With these modifications, the bill reauthorizes section 215
with a new sunset date of December 31, 2013.
NATIONAL SECURITY LETTER REFORM
National security letters (NSLs) are written directives for
information issued by the FBI in national security
investigations to third-party companies such as telephone
companies, financial institutions, Internet service providers,
and consumer credit agencies, without judicial review. Unlike
section 215 ``tangible things'' orders, the FBI issues NSLs
without any judicial authorization or review. Over the last 20
years, Congress has enacted a series of laws authorizing the
FBI to use NSLs to obtain information in terrorism, espionage,
and classified information leak investigations without
obtaining warrants from the Foreign Intelligence Surveillance
Court or approval from another court.
There are five provisions of law that authorize the FBI to
issue five types of NSLs: (1) the Right to Financial Privacy
Act (RFPA) (to obtain financial institution customer
records);\56\ (2) the Electronic Communications Privacy Act
(ECPA) (to obtain certain communication service provider
records);\57\ (3) the Fair Credit Reporting Act (FCRA) (to
obtain certain financial information records );\58\ (4) FCRA
(to obtain credit agency consumer records for counterterrorism
investigations);\59\ and (5) the National Security Act (NSA)
(to obtain financial information, records, and consumer
reports).\60\ Companies receiving NSLs are usually prohibited,
based on ``gag'' orders that accompany such NSLs, from
disclosing publically the fact or nature of a request.
---------------------------------------------------------------------------
\56\Section 1114(a)(5)(A),12 U.S.C. 3414(a)(5)(A).
\57\18 U.S.C. Sec. 2709(a).
\58\Section 626, 15 U.S.C. 1681u.
\59\Section 627, 15 U.S.C. 1681v.
\60\Section 802, 50 U.S.C. 436.
---------------------------------------------------------------------------
Prior to the enactment of the USA PATRIOT Act, the standard
for issuing an NSL required that the information sought was
relevant to an authorized counterterrorism or
counterintelligence investigation and that there were specific
and articulable facts giving reason to believe that the
information sought pertained to a foreign power or agent of a
foreign power. The USA PATRIOT Act modified that standard to
require only that the records be relevant to an authorized
counterterrorism or counterintelligence investigation--provided
that such investigation of a United States person is not
conducted solely on the basis of activities protected by the
First Amendment to the Constitution.
With the relaxing of the NSL standard to simple
``relevance'' to an authorized investigation, civil liberties
and privacy experts maintain that NSLs allow the government to
access, far too readily, personal information about people who
are not known or even suspected to have done anything
wrong.\61\ Moreover, while the USA PATRIOT Improvement and
Reauthorization Act of 2005 allowed NSL recipients to consult a
lawyer, NSLs and related gag orders remain free from any
meaningful judicial review.\62\ Indeed, the Second Circuit, in
Doe v. Mukasey, 549 F.3d 861 (2008), found various
constitutional defects in nondisclosure orders pertaining to
NSLs.
---------------------------------------------------------------------------
\61\Hearing on the USA PATRIOT Act before the House Judiciary S.
Comm. on the Constitution, Civil Rights, and Civil Liberties, 111th
Cong. (2009) (written statement of Mike German on behalf of the
American Civil Liberties Union).
\62\Id.
---------------------------------------------------------------------------
Critics of NSLs also argue that the broad USA PATRIOT Act
standard for issuance invites potential abuse, an argument
bolstered by reports from DOJ's Office of the Inspector General
(OIG). The 2007 and 2008 OIG Reports regarding the FBI's use of
NSLs revealed abuses including: (1) gathering irrelevant
private information about individuals and uploading and
indefinitely retaining it in FBI databases; (2) inaccurate
reporting to Congress regarding the number and use of NSLs; (3)
issuing NSLs without proper authorization and outside statutory
and regulatory requirements; and (4) widespread abuse in the
use of so-called ``exigent letters''--``emergency'' requests
for telephone and other data--in non-emergencies, without even
a pending investigation, as a means to bypass normal NSL
procedures.\63\
---------------------------------------------------------------------------
\63\See generally Dep't of Justice, Ofc. of Inspector General, A
Review of the Federal Bureau of Investigation's Use of National
Security Letters, available at http://www.npr.org/documents/2007/mar/
doj/doj_oig_nsl.pdf (March 2007).
---------------------------------------------------------------------------
OIG also found one instance in which the FBI had issued
NSLs for information after the FISC had refused to issue
section 215 orders for the same information, citing First
Amendment concerns.\64\ OIG ``questioned the appropriateness''
of the FBI's issuing these NSLs after the court's decision,
because NSLs have the same First Amendment caveat as Section
215 requests and the FBI issued the NSLs based on the same
factual predicate.\65\ The FBI issued the NSLs without further
review of the underlying investigation to ensure that it was
not premised solely on protected First Amendment conduct.\66\
---------------------------------------------------------------------------
\64\Written Statement of Glenn Fine, Inspector General, Dep't of
Justice, Hearing on ``The FBI's Use of National Security Letters and
Section 215 Orders for Business Records,'' before the Subcommittee on
Constitution, Civil Rights, and Civil Liberties, April 15, 2008.
\65\Id.
\66\Id.
---------------------------------------------------------------------------
In testimony before the Constitution Subcommittee hearing
on the USA PATRIOT Act this September, ACLU Policy Counsel Mike
German and former Representative Tom Evans urged the Committee
to: (1) change the issuance standard for NSLs to ensure that
the government is seeking information on the appropriate
individuals; and (2) address concerns regarding NSL gag orders,
and provide meaningful judicial review of both NSLs and
associated gag orders.\67\
---------------------------------------------------------------------------
\67\Hearing on the USA PATRIOT Act before the House Judiciary
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th
Cong. (2009) (written statements of Mike German and former Rep. Tom
Evans).
---------------------------------------------------------------------------
The Committee has examined these concerns and balanced them
against the government's need to acquire basic ``building
block'' information in national security investigations in an
efficient manner. Because the government can issue NSLs without
obtaining court authorization, it is appropriate to tie the NSL
issuance standard more closely to information pertaining to a
foreign power or agent of a foreign power--terms that are well-
defined in the law. The bill therefore requires the government
to produce and retain, prior to the issuance of an NSL, a
statement of ``specific and articulable'' facts documenting how
the information sought is relevant to an authorized
counterterrorism or counterintelligence investigation and: (1)
pertains to a foreign power or agent of a foreign power; (2) is
relevant to the activities of a suspected agent of a foreign
power or agent of a foreign power that is the subject of such
authorized investigation; or (3) pertains to an individual in
contact with, or personally known to, a suspected agent of a
foreign power that is the subject of such authorized
investigation.
The bill also corrects constitutional defects in the
issuance of NSL nondisclosure orders identified by the Second
Circuit in Doe v. Mukasey, and adopts procedures suggested by
the court for a constitutionally sound process. These
procedures include: (1) requiring the government to notify the
recipient of a right to judicial review of a nondisclosure
order at the time the government serves the NSL on the
recipient; (2) requiring the government to seek a court order
prohibiting disclosure within thirty (30) days of being
notified by the recipient that the recipient wants a court to
review the nondisclosure requirement associated with the NSL;
and (3) requiring the government to seek court renewals of
nondisclosure orders every 180 days (or less where justified by
the timeframe established by the court's order). Moreover, the
bill eliminates the ``conclusive certifications'' that
previously allowed certain high-level government officials to
make national security-related certifications that, unless made
in bad faith, would automatically defeat a challenge to a
nondisclosure order.
OVERSIGHT, CIVIL LIBERTIES AND PRIVACY PROTECTIONS
In an effort to enhance civil liberties and privacy
protections, this Committee examined ways to increase Judicial,
Legislative, and Executive Branch oversight in relation to
collection and surveillance authorities, and to require
increased public reporting of the use of these authorities in a
manner that will not otherwise threaten national security.
Section 301 of the bill expresses a sense of Congress that the
President should periodically review the level of
classification of programs that make use of NSLs or FISA
authorities, to determine if such programs can be declassified,
in whole or in part, without interfering with ongoing
investigations or otherwise threatening national security.
Sections 108 and 209 of the bill require public reporting
pertaining to FISA and NSLs.
Substantively, for the first time in statute, the bill
addresses the need, in appropriate circumstances, for
minimization procedures pertaining to information acquired from
NSLs and FISA pen register and trap-and-trace devices. The bill
also strengthens judicial oversight of FISA pen/trap and
section 215 ``tangible things'' orders, by underscoring a FISA
judge's authority to review compliance with minimization
procedures. Moreover, under section 107 of the bill, in order
to obtain an order authorizing the use of a FISA pen/trap, the
government would now provide a statement of facts justifying
the applicant's belief that the information likely to be
obtained is relevant, rather than merely certifying such
relevance. The bill also strengthens judicial oversight of
criminal ``sneak and peek'' warrants by shortening the periods
of time for which the government can delay notice of a search
before having to go back to the court for continued
authorization of the delay of notice.
Hearings
The Committee's Subcommittee on Constitution, Civil Rights,
and Civil Liberties held a hearing on the USA PATRIOT Act on
September 22, 2009. Witnesses at the hearing included Todd
Hinnen, Deputy Assistant Attorney General, National Security
Division; Suzanne Spalding, Principal, Bingham Consulting
Group, and former Democratic Staff Director, U.S. House
Permanent Select Committee on Intelligence; Mike German, Policy
Counsel, ACLU and former FBI Agent; Thomas B. Evans, Jr.,
Chairman, The Evans Group, Ltd. and former Member of Congress
(R-DE); and Kenneth Wainstein, Partner, O'Melveny & Myers, LLP
and former Assistant Attorney General, National Security
Division.
On October 29, 2009, the Committee held a classified
hearing on the USA PATRIOT Act and related matters. Witnesses
at that hearing included David S. Kris, Assistant Attorney
General for National Security, Department of Justice and
Michael E. Leiter, Director, National Counterterrorism Center.
The were also two hearings held in the 110th Congress. On
April 15, 2008, the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties held a hearing on H.R. 3189
(110th), the ``National Security Letters Reform Act of 2007.''
Witnesses included Glenn A. Fine, Inspector General, U.S.
Department of Justice; Valerie Caproni, General Counsel,
Federal Bureau of Investigation; Jameel Jaffer, Director,
National Security Project, American Civil Liberties Union;
Bruce Fein, Lichfield Group, Inc.; Michael J. Woods, Former
Chief, FBI National Security Law Unit; and David Kris, Former
Associate Deputy Attorney General, U.S. Department of Justice.
On March 20, 2007, the Committee held a hearing on The
Inspector General's Independent Report on the FBI's Use of
National Security Letters. Witnesses included Valerie Caproni,
General Counsel, Office of General Counsel, Federal Bureau of
Investigation, and Glenn A. Fine, Inspector General, U.S.
Department of Justice.
Committee Consideration
On November 4 and 5, 2009, the Committee met in open
session for consideration of H.R. 3485. On November 5, 2009,
the Committee ordered the bill H.R. 3845 favorably reported
with amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 3845:
1. An amendment by Mr. Gallegly (to the manager's amendment
and the bill) to strike additional section 215 business records
protections for libraries and bookseller information. Defeated
21 to 13.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 13 21
----------------------------------------------------------------------------------------------------------------
2. An amendment by Mr. Lungren (to the manager's amendment
and the bill) to strike minimization procedures for NSLs.
Defeated 18 to 8.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi...................................................
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei......................................................
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 8 18
----------------------------------------------------------------------------------------------------------------
3. An amendment by Mr. Chaffetz (to the manager's amendment
and the bill) to strike the ``specific and articulable'' facts
requirement for NSLs and replace it with a requirement for
facts showing relevance to an authorized investigation to
protect against international terrorism or clandestine
intelligence activities. Defeated 18 to 11.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 11 18
----------------------------------------------------------------------------------------------------------------
4. A manager's amendment by Mr. Conyers to make a number of
clarifying refinements. Agreed to 19 to 11.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 19 11
----------------------------------------------------------------------------------------------------------------
5. An amendment by Mr. Schiff to (1) replace the ``specific
and articulable'' facts requirement for a section 215 order
with ``statement of facts,'' (2) strike the presumptive
relevance for documents that pertain to a foreign power or
agent, the activities of a suspected agent of a foreign power,
who is the subject of the authorized investigation, or an
individual in contact with, or known to, the suspected agent,
and (3) require the President to report to Congress regarding
whether certain operations authorized by Section 215 could be
appropriately modified so as to enhance civil liberties
protections. Agreed to 19 to 12.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 19 12
----------------------------------------------------------------------------------------------------------------
6. An amendment by Mr. Lungren (to the amendment by Mr.
Schiff) restoring the ``presumptive relevance'' standard for
certain documents sought under section 215. Defeated 19 to 13.
ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 13 19
----------------------------------------------------------------------------------------------------------------
7. An amendment by Mr. Smith to reauthorize ``Lone Wolf''
until December 31, 2013. Defeated 15 to 15.
ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen.......................................................
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 15 15
----------------------------------------------------------------------------------------------------------------
8. An amendment by Mr. Rooney to strike changes to the
standard for issuance of a criminal pen register and trap-and-
trace device. Defeated 12 to 10.
ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper......................................................
-----------------------------------------------
Total....................................................... 10 12
----------------------------------------------------------------------------------------------------------------
9. An amendment by Mr. Lungren to require a court, when
reviewing a section 215 nondisclosure order, to give
``substantial weight'' to a certification by a high-level
government official that disclosure may endanger the national
security of the United States or interfere with diplomatic
relations. Defeated 11 to 8.
ROLLCALL NO. 9
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes......................................................
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper......................................................
-----------------------------------------------
Total....................................................... 8 11
----------------------------------------------------------------------------------------------------------------
10. An amendment by Mr. Issa to modify the standards for
``sneak and peek'' authority. Agreed to 16 to 10.
ROLLCALL NO. 10
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes......................................................
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 16 10
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3845, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 10, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3845, the USA
PATRIOT Amendments Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 3845--USA PATRIOT Amendments Act of 2009.
CBO estimates that implementing H.R. 3845 would cost about
$9 million over the 2010-2014 period and less than $500,000
annually in subsequent years, assuming the availability of
appropriated funds. Enacting the bill could affect direct
spending and revenues, but CBO estimates that any such effects
would not be significant.
CBO has determined that the provisions of H.R. 3845 are
either excluded from review for mandates under the Unfunded
Mandates Reform Act because they are necessary for national
security or contain no mandates as defined by that act.
The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT) Act of 2001 (Public Law 107-56) and the USA
PATRIOT Improvement and Reauthorization Act of 2005 (Public Law
109-177) expanded the powers of Federal law enforcement and
intelligence agencies to investigate and prosecute terrorist
acts. H.R. 3845 would extend for four years certain provisions
of those acts that will otherwise expire on December 31, 2009.
In addition, the bill would modify the laws relating to certain
investigations of potential terrorist activity and require the
Department of Justice (DOJ) to prepare additional reports and
audits relating to those investigations.
H.R. 3845 would require the DOJ Inspector General, by
December 31, 2014, to conduct audits of the department's use of
certain investigative powers during the 2007-2013 period. Based
on information from DOJ, we expect that the department would
need to hire about 10 people to carry out those audits. CBO
estimates that auditing effort would cost about $1 million in
fiscal year 2010, about $2 million annually over the 2011-2014
period, and less than $500,000 annually thereafter for DOJ to
complete the audits and reports required by the bill. Such
spending would be subject to the availability of appropriated
funds.
Because those prosecuted and convicted under H.R. 3845
could be subject to civil and criminal fines, the Federal
Government might collect additional fines if the legislation is
enacted. Collections of civil fines are recorded in the budget
as revenues. Criminal fines are recorded as revenues, deposited
in the Crime Victims Fund, and later spent. CBO expects that
any additional revenues and direct spending would not be
significant because of the small number of cases likely to be
affected.
On October 23, 2009, CBO transmitted a cost estimate for S.
1692, the USA PATRIOT Act Sunset Extension Act of 2009, as
reported by the Senate Committee on the Judiciary on October
13, 2009. That bill would require fewer DOJ audits and CBO
estimated that implementing S. 1692 would cost about $5 million
over the 2010-2012 period and less than $500,000 annually in
subsequent years, assuming the availability of appropriated
funds.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3845 is intended to reauthorize and modify certain surveillance
and information gathering authorities to ensure the government
can conduct efficient, thorough and effective national security
investigations, in a manner that appropriately protects privacy
and civil liberties interests.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8 of the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3845 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee:
Sec. 1. Short title and table of contents. Section 1 sets
forth the short title of the bill as 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. Section 101 of the bill
clarifies Congressional intent that when using roving wiretap
authority, the government must describe its target with a
sufficient degree of particularity to allow a judge to be able
to distinguish the target from other potential users of places
or facilities to be surveilled, so as to avoid surveillance of
unrelated targets at unrelated places.
Sec. 102. Extension of Sunset of Sections 206 and 215 of
USA PATRIOT Act. Section 102 of the bill extends the sunset
dates of roving wiretaps and FISA business records provisions
to December 31, 2013.
Sec. 103. Access to Certain Tangible Things under section
501 of the Foreign Intelligence Surveillance Act of 1978.
Section 103 of the bill modifies the standard for obtaining a
court order for tangible things under section 501 of FISA, as
amended by section 215 of the USA PATRIOT Act, by removing the
presumption of relevance for certain categories of documents,
and requiring the government to provide a statement of facts
and circumstances relied upon by the applicant to justify the
applicant's belief that the tangible things sought are relevant
to an authorized foreign intelligence, counterterrorism, or
counterintelligence investigation. It permits a recipient to
challenge both the underlying order and any associated
nondisclosure order immediately, and requires the government to
notify the recipient of this right at the time the order is
served. It eliminates the government's right to conclusively
defeat a challenge to a nondisclosure order with a
certification. And it facilitates continuing court oversight of
minimization procedures through compliance assessments
pertaining to specific section 215 orders.
Section 103 of the bill also requires the government to
meet a heightened standard for using a section 215 order to
obtain personally identifiable information concerning library
patrons and bookseller information, of ``specific and
articulable facts'' showing that there are reasonable grounds
to believe that the records sought are ``relevant to an
authorized investigation . . . to obtain foreign intelligence
information not concerning a United States person or to protect
against international terrorism or clandestine intelligence
activities'' and that the records ``pertain to a foreign power
or agent of a foreign power, are relevant to the activities of
a suspected agent of a foreign power who is the subject of such
authorized investigation, or pertain to an individual in
contact with, or known to, a suspected agent of a foreign power
who is the subject of such authorized investigation.''
Sec. 104. Sunset Relating to Individual Terrorists as
Agents of Foreign Powers. Section 104 of the bill allows the
``Lone Wolf'' provision to sunset on December 31, 2009.
Sec. 105. Audits. Section 105 of the bill requires the DOJ
Inspector General to audit and submit reports to Congress for
section 215 ``tangible things'' orders, national security
letters (NSLs), and FISA pen register and trap-and-trace
orders, and criminal pen register and trap-and-trace orders for
all calendar years through 2013.
Sec. 106. Criminal ``sneak and peek'' searches. Section 106
of the bill shortens the period after which the government must
seek an extension off time for delaying notice of a ``sneak and
peek'' search warrant to seven (7) days, from the current 30
days or longer. Any single extension to delay notice granted by
a court is limited to 21 days, though multiple extensions are
possible. Moreover, any application for extension must be made
by the Senate-confirmed United States Attorney for the district
seeking the delay. If the government's rationale for delaying
notice of the search is the possibility of jeopardizing an
investigation or unduly delaying a trial, the government must
now establish that such an outcome is ``likely to'' occur.
Sec. 107. Orders for Pen Registers and Trap and Trace
Devices for Foreign Intelligence Purposes. Section 107 of the
bill modifies the standard for obtaining a pen/trap to require
the government to provide a statement of facts and
circumstances relied upon by the applicant to justify the
applicant's belief that the information likely to be obtained
is relevant. This ensures that the government is presenting a
thorough statement of facts to the court, and strengthens
judicial oversight. Under current law, in order to obtain a
FISA pen/trap, the government must merely certify that the
information sought is foreign intelligence information or is
relevant to an investigation to protect against international
terrorism or clandestine intelligence activities.
Section 107 also codifies procedures for minimization of
the retention and dissemination of information obtained
pursuant to 50 U.S.C. Sec. 1842, where appropriate in
exceptional circumstances. This is intended to provide a
statutory footing for the existing practice whereby specialized
minimization procedures are implemented in certain limited
circumstances, under FISC authorization and oversight.
Sec. 108. Public Reporting on the Foreign Intelligence
Surveillance Act. Section 108 of the bill requires that annual
public reporting of numbers of requests for surveillance be
given separately for electronic surveillance, physical
searches, tangible things orders, and pen registers, rather
than the public reporting of these requests in one aggregate
number.
Sec. 109. Challenges to Nationwide Orders for Electronic
Surveillance. Section 109 of the bill permits a provider of
electronic communications 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. Current law only allows a challenge in the district
where the order was issued.
Sec. 110. Report on Civil Liberties and Privacy
Protections. Section 110 of the bill helps ensure that
appropriate consideration is given to civil liberties
protections with respect to 215 orders used to support
sensitive collections, by calling on the President to report to
Congress regarding whether such collections could be modified
so as to enhance protections for civil liberties, the nature
and likely costs of any potential modifications, and any
technical challenges or potential impact on operations of
potential modifications. This report is to be submitted to this
Committee, the House Permanent Select Committee on
Intelligence, and the Committee on the Judiciary and the Select
Committee on Intelligence of the Senate, no later than 180 days
after the date of enactment of the bill.
TITLE II--NATIONAL SECURITY LETTER REFORM
Sec. 201. Short Title. Section 201 sets forth the short
tile of title II as the ``National Security Letter Reform Act
of 2009.''
Sec. 202. Sunset. Section 202 provides a sunset date of
December 31, 2013 for the new statutory authorization governing
NSLs, after which the relevant NSL statutes would, in the
absence of new legislation, revert to how they read on October
25, 2001, prior to enactment of the USA PATRIOT Act.
Sec. 203. National Security Letter Defined. Section 203 of
the bill 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. Section 204 of the bill
requires, before an NSL can issue, that an official with the
authority to issue such letter document and retain a statement
of specific and articulable facts showing that there are
reasonable grounds to believe that the information sought: (1)
pertains to a foreign power or an agent of a foreign power; (2)
is relevant to the activities of a suspected agent of a foreign
power that is the subject of such authorized investigation; or
(3) pertains to an individual in contact with, or personally
known to, a suspected agent of a foreign power that is the
subject of such authorized investigation. Current law requires
only relevance to an authorized investigation before an NSL can
issue, and does not require a government official to document
and retain a statement of facts showing how the new standard is
satisfied.
Sec. 205. Notification of Right to Judicial Review of
Nondisclosure Order. Section 205 of the bill requires the
government to notify a recipient of an NSL of a right to
judicial review of any nondisclosure requirement imposed in
connection with the NSL, and provides 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. Section
206 of the bill requires the Attorney General, or a designee of
the Attorney General at a level not lower than Section Chief of
a division of the Department of Justice, to authorize the use
of any information acquired from an NSL in a criminal
proceeding. Current law does not impose any such authorization
requirement.
Sec. 207. Judicial Review of National Security Letter
Nondisclosure Order. Section 207 of the bill establishes
additional procedures for a recipient to seek judicial review
of a nondisclosure requirement imposed in connection with an
NSL. These procedures correct Constitutional defects in the
issuance of NSL nondisclosure orders identified by the Second
Circuit in Doe v. Mukasey. If the recipient wishes to obtain
court review of a nondisclosure requirement, the recipient must
notify the government. The government has 30 days after the
receipt of such notification to apply for a court order
prohibiting disclosure regarding the NSL. The nondisclosure
requirement remains in effect during the pendency of any
judicial proceedings. The government's application for a
nondisclosure order must include a certification from the
Attorney General, the 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, interfere with a
criminal, counterterrorism, or counterintelligence
investigation, interfere with diplomatic relations, or result
in danger to the life or physical safety of a person. If a
court determines that there is reason to believe that
disclosure will result in one of the enumerated harms, the
court may issue a nondisclosure order, for no longer than 180
days. The government can seek renewals of nondisclosure orders
for additional periods of not longer than 180 days each. This
section also eliminates the ``conclusive certification'' power
under which certain high-level officials could make a general
certification that disclosure might endanger the national
security of the United States or interfere with diplomatic
relations, with the result that such certification or
recertification would, unless made in bad faith, automatically
defeat any challenge to a nondisclosure order.
Sec. 208. Minimization Procedures. Section 208 of the bill
requires the Attorney General to establish minimization
procedures governing the acquisition, retention, and
dissemination by the Federal Bureau of Investigation in
response to an NSL and to submit a copy of these procedures to
this Committee, the House Permanent Select Committee on
Intelligence, and the Committee on the Judiciary and the Select
Committee on Intelligence of the Senate. Current statutory law
does not require the government to apply minimization
procedures to information acquired in response to an NSL,
although this has become a common practice.
Sec. 209. Public Reporting on National Security Letters.
Section 209 requires annual public reporting on the number of
requests for NSLs and greater specificity of the types persons
targeted (e.g., U.S. persons v. non-U.S. persons).
TITLE III--GENERAL PROVISIONS
Sec. 301. Sense of Congress on Level of Classification of
Certain Programs. Section 301 of the bill expresses the sense
of the Congress that the President should periodically review
the level of classification of programs that make use of NSLs
or authorities under the FISA statute, to determine if such
programs can be declassified in whole or in part, without
interfering with an ongoing investigation or otherwise
threatening national security.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act may be cited as the ``Foreign Intelligence Surveillance Act
of 1978''.
TABLE OF CONTENTS
* * * * * * *
TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
[TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
[Sec. 501. Access to certain business records for foreign intelligence
and international terrorism investigations.
[Sec. 502. Congressional oversight.]
TITLE V--ACCESS TO TANGIBLE THINGS FOR FOREIGN INTELLIGENCE PURPOSES
Sec. 501. Access to tangible things for foreign intelligence purposes
and international terrorism investigations.
* * * * * * *
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
ISSUANCE OF AN ORDER
Sec. 105. (a) * * *
* * * * * * *
(c)(1) * * *
(2) Directions.--An order approving an electronic
surveillance under this section shall direct--
(A) * * *
(B) that, upon the request of the
applicant, a specified communication or other
common carrier, landlord, custodian, or other
specified person, or in circumstances where the
Court [finds, based upon specific facts]
finds--
(i) that the target of the
application is a foreign power, as
defined in paragraph (1), (2), (3), or
(6) of section 101(a), an agent of such
a foreign power, or a specific
individual; and
(ii) based upon specific facts
provided in the application, that the
actions of the target of the
application may have the effect of
thwarting the identification of a
specified person, such other persons,
furnish the applicant forthwith all
information, facilities, or technical
assistance necessary to accomplish the
electronic surveillance in such a
manner as will protect its secrecy and
produce a minimum of interference with
the services that such carrier,
landlord, custodian, or other person is
providing that target of electronic
surveillance;
* * * * * * *
TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE PURPOSES
DEFINITIONS
Sec. 401. As used in this title:
(1) * * *
* * * * * * *
(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 retention, and prohibit the
dissemination, of nonpublicly available
information known to concern 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 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.
PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE AND
INTERNATIONAL TERRORISM INVESTIGATIONS
Sec. 402. (a) * * *
* * * * * * *
(c) Each application under this section shall require the
approval of the Attorney General, or a designated attorney for
the Government, and shall include--
(1) the identity of the Federal officer seeking to
use the pen register or trap and trace device covered
by the application; [and]
(2) [a certification by the applicant] a statement
of the facts relied upon by the applicant to justify
the belief of the applicant 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,
provided that such investigation of a United States
person is not conducted solely upon the basis of
activities protected by the first amendment to the
Constitution[.]; and
(3) a statement of proposed minimization
procedures.
(d)(1) * * *
(2) An order issued under this section--
(A) * * *
* * * * * * *
(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) * * *
* * * * * * *
(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) * * *
* * * * * * *
(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[.]; and
(D) shall, if the judge finds that there are
exceptional circumstances, direct that minimization
procedures be followed.
* * * * * * *
(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 any applicable
minimization procedures by reviewing the circumstances under
which information concerning United States persons was retained
or disseminated.
AUTHORIZATION DURING EMERGENCIES
Sec. 403. (a) * * *
* * * * * * *
(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
minimization procedures be followed, if appropriate.
[(c)] (d)(1) * * *
* * * * * * *
USE OF INFORMATION
Sec. 405. (a)(1) Information acquired from the use of a pen
register or trap and trace device installed pursuant to this
title concerning any United States person may be used and
disclosed by Federal officers and employees without the consent
of the United States person only in accordance with the
provisions of this section and the minimization procedures
under this title, if required.
* * * * * * *
TITLE V--ACCESS TO [CERTAIN BUSINESS RECORDS] TANGIBLE THINGS FOR
FOREIGN INTELLIGENCE PURPOSES
SEC. 501. ACCESS TO [CERTAIN BUSINESS RECORDS] TANGIBLE THINGS FOR
FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM
INVESTIGATIONS.
(a) * * *
(b) Each application under this section--
(1) * * *
(2) shall include--
(A) [a statement of facts showing] a
statement of the facts and circumstances relied
upon by the applicant to justify the belief of
the applicant that there are reasonable grounds
to believe that the tangible things sought 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, such things being
presumptively relevant to an authorized
investigation if the applicant shows in the
statement of the facts that they pertain to--
[(i) a foreign power or an agent of
a foreign power;
[(ii) the activities of a suspected
agent of a foreign power who is the
subject of such authorized
investigation; or
[(iii) an individual in contact
with, or known to, a suspected agent of
a foreign power who is the subject of
such authorized investigation; and]
clandestine intelligence activities;
(B) if the records sought contain
bookseller information, or are from a library
(as defined in section 213(1) of the Library
Services and Technology Act (20 U.S.C.
9122(1))) and contain personally identifiable
information about a patron of such library, a
statement of specific and articulable facts
showing that there are reasonable grounds to
believe that the records 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 who is the
subject of such authorized
investigation; and
[(B)] (C) an enumeration of the
minimization procedures adopted by the Attorney
General under subsection (g) that are
applicable to the retention and dissemination
by the Federal Bureau of Investigation of any
tangible things to be made available to the
Federal Bureau of Investigation based on the
order requested in such application.
(c)(1) * * *
(2) An order under this subsection--
(A) * * *
* * * * * * *
(D) may only require the production of a tangible
thing if such thing can be obtained with a subpoena
duces tecum issued by a court of the United States in
aid of a grand jury investigation or with any other
order issued by a court of the United States directing
the production of records or tangible [things; and]
things;
(E) shall not disclose that such order is issued
for purposes of an investigation described in
[subsection (a).] subsection (a); and
(F) shall direct the applicant to provide notice to
each person receiving such order of--
(i) the right to challenge the legality of
a production order or nondisclosure order by
filing a petition in accordance with subsection
(f); and
(ii) the procedures to follow to file such
petition in accordance with such subsection.
* * * * * * *
(f)(1) * * *
(2)(A)(i) A person receiving [a production order] a
production order or nondisclosure order may challenge the
legality of that order by filing a petition with the pool
established by section 103(e)(1). [Not less than 1 year after
the date of the issuance of the production order, the recipient
of a production order may challenge the nondisclosure order
imposed in connection with such production order by filing a
petition to modify or set aside such nondisclosure order,
consistent with the requirements of subparagraph (C), with the
pool established by section 103(e)(1).]
(ii) The presiding judge shall immediately assign a
petition under clause (i) to 1 of the judges serving in the
pool established by section 103(e)(1). Not later than 72 hours
after the assignment of such petition, the assigned judge shall
conduct an initial review of the petition. If the assigned
judge determines that the petition is frivolous, the assigned
judge shall immediately deny the petition and affirm the
[production order or nondisclosure] order. If the assigned
judge determines the petition is not frivolous, the assigned
judge shall promptly consider the petition in accordance with
the procedures established under section 103(e)(2).
* * * * * * *
(C)(i) * * *
[(ii) If, upon filing of such a petition, the Attorney
General, Deputy Attorney General, an Assistant Attorney
General, or the Director of the Federal Bureau of Investigation
certifies that disclosure may endanger the national security of
the United States or interfere with diplomatic relations, such
certification shall be treated as conclusive, unless the judge
finds that the certification was made in bad faith.]
[(iii)] (ii) If the judge denies a petition to modify or
set aside a nondisclosure order, the recipient of such order
shall be precluded for a period of 1 year from filing another
such petition with respect to such nondisclosure order.
* * * * * * *
(g) Minimization Procedures.--
(1) * * *
(2) Compliance assessment.--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
such order, a judge may assess compliance with the
minimization procedures required to be followed under
such order by reviewing the circumstances under which
information concerning United States persons was
retained or disseminated.
[(2)] (3) Defined.--In this section, the term
``minimization procedures'' means--
(A) * * *
* * * * * * *
(i) Bookseller Information Defined.--In this section, the
term ``bookseller information'' means personally identifiable
information concerning the purchase (including subscription
purchases) or rental of books, journals, or magazines, whether
in print or digitally.
* * * * * * *
TITLE VI--REPORTING REQUIREMENT
SEC. 601. SEMIANNUAL REPORT OF THE ATTORNEY GENERAL.
(a) * * *
(b) Public Report.--The Attorney General shall make
publicly available the portion of each report under subsection
(a) relating to paragraph (1) of such subsection.
[(b)] (c) Frequency.--The first report under this section
shall be submitted not later than 6 months after the date of
enactment of this section. Subsequent reports under this
section shall be submitted semi-annually thereafter.
[(c)] (d) Submissions to Congress.--The Attorney General
shall submit to the committees of Congress referred to in
subsection (a)--
(1) * * *
* * * * * * *
[(d)] (e) Protection of National Security.--The Attorney
General, in consultation with the Director of National
Intelligence, may authorize redactions of materials described
in [subsection (c)] subsection (d) that are provided to the
committees of Congress referred to in subsection (a), if such
redactions are necessary to protect the national security of
the United States and are limited to sensitive sources and
methods information or the identities of targets.
[(e)] (f) Definitions.--In this section:
(1) * * *
* * * * * * *
----------
USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005
* * * * * * *
TITLE I--USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT
* * * * * * *
SEC. 102. USA PATRIOT ACT SUNSET PROVISIONS.
(a) * * *
(b) Sections 206 and 215 Sunset.--
(1) In general.--Effective [December 31, 2009]
December 31, 2013, the Foreign Intelligence
Surveillance Act of 1978 is amended so that sections
501, 502, and 105(c)(2) read as they read on October
25, 2001.
* * * * * * *
SEC. 106A. AUDIT ON ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN
INTELLIGENCE PURPOSES.
(a) * * *
(b) Requirements.--The audit required under subsection (a)
shall include--
(1) an examination of each instance in which the
Attorney General, any other officer, employee, or agent
of the Department of Justice, the Director of the
Federal Bureau of Investigation, or a designee of the
Director, submitted an application to the Foreign
Intelligence Surveillance Court (as such term is
defined in section 301(3) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1821(3))) for an
order under section 501 of such Act during the calendar
years of 2002 through [2006] 2013, including--
(A) * * *
* * * * * * *
(5) an examination of the effectiveness of such
section as an investigative tool, including--
(A) * * *
* * * * * * *
(C) with respect to [calendar year 2006]
each of calendar years 2006 through 2013, an
examination of the minimization procedures
adopted by the Attorney General under section
501(g) of such Act and whether such
minimization procedures protect the
constitutional rights of United States persons;
* * * * * * *
(c) Submission Dates.--
(1) * * *
* * * * * * *
(3) Calendar years 2007 through 2009.--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 through 2009.
(4) Calendar years 2010 through 2013.--Not later
than December 31, 2011, and annually thereafter until
December 31, 2014, 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 preceding calendar year.
(d) Prior Notice to Attorney General and Director of
National Intelligence; Comments.--
(1) Notice.--Not less than 30 days before the
submission of a report under subsection (c)(1) [or
(c)(2)], (c)(2), (c)(3), or (c)(4), the Inspector
General of the Department of Justice shall provide such
report to the Attorney General and the Director of
National Intelligence.
(2) Comments.--The Attorney General or the Director
of National Intelligence may provide comments to be
included in the reports submitted under subsections
(c)(1) [and (c)(2)], (c)(2), (c)(3), or (c)(4) as the
Attorney General or the Director of National
Intelligence may consider necessary.
(e) Unclassified Form.--The reports submitted under
subsections (c)(1) [and (c)(2)], (c)(2), (c)(3), or (c)(4) and
any comments included under subsection (d)(2) shall be in
unclassified form, but may include a classified annex.
* * * * * * *
SEC. 118. REPORTS ON NATIONAL SECURITY LETTERS.
(a) * * *
* * * * * * *
(c) Report on Requests for National Security Letters.--
(1) In general.--In April of each year, the
Attorney General shall submit to Congress an aggregate
report setting forth with respect to the preceding year
the total number of requests made by the Department of
Justice for information [concerning different United
States persons] under--
(A) section 2709 of title 18, United States
Code (to access certain communication service
provider records)[, excluding the number of
requests for subscriber information];
* * * * * * *
(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).
[(2)] (3) Unclassified form.--The report under this
section shall be submitted in unclassified form.
* * * * * * *
SEC. 119. AUDIT OF USE OF NATIONAL SECURITY LETTERS.
(a) * * *
(b) Requirements.--The audit required under subsection (a)
shall include--
(1) an examination of the use of national security
letters by the Department of Justice during calendar
years 2003 through [2006] 2013;
* * * * * * *
(c) Submission Dates.--
(1) * * *
* * * * * * *
(3) Calendar years 2007 through 2009.--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 through 2009.
(4) Calendar years 2010 through 2013.--Not later
than December 31, 2011, and annually thereafter until
December 31, 2014, 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.
(d) Prior Notice to Attorney General and Director of
National Intelligence; Comments.--
(1) Notice.--Not less than 30 days before the
submission of a report under subsection (c)(1) [or
(c)(2)], (c)(2), (c)(3), or (c)(4), the Inspector
General of the Department of Justice shall provide such
report to the Attorney General and the Director of
National Intelligence.
(2) Comments.--The Attorney General or the Director
of National Intelligence may provide comments to be
included in the reports submitted under subsection
(c)(1) [or (c)(2)], (c)(2), (c)(3), or (c)(4) as the
Attorney General or the Director of National
Intelligence may consider necessary.
(e) Unclassified Form.--The reports submitted under
subsection (c)(1) [or (c)(2)], (c)(2), (c)(3), or (c)(4) and
any comments included under subsection (d)(2) shall be in
unclassified form, but may include a classified annex.
* * * * * * *
----------
INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
* * * * * * *
TITLE VI--TERRORISM PREVENTION
Subtitle A--Individual Terrorists as Agents of Foreign Powers
SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.
(a) * * *
(b) Sunset.--
(1) In general.--Except as provided in paragraph
(2), [the amendment made by subsection (a) shall cease
to have effect] effective on December 31, 2009[.]--
(A) subparagraph (C) of section 101(b)(1)
of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801(b)(1)) is repealed;
(B) subparagraphs (D) and (E) of such
section are redesignated as subparagraphs (C)
and (D), respectively;
(C) paragraph (2) of section 601(a) of such
Act (50 U.S.C. 1871(a)) is repealed; and
(D) paragraphs (3), (4), and (5) of such
section are redesignated as paragraphs (2),
(3), and (4), respectively.
(2) [Exception] Exception.--
(A) Existing investigations.--With respect
to any particular foreign intelligence
investigation that began before the date on
which the provisions referred to in paragraph
(1) cease to have effect, or with respect to
any particular offense or potential offense
that began or occurred before the date on which
the provisions cease to have effect, such
provisions shall continue in effect.
(B) Reports.--Notwithstanding the repeals
made by paragraph (1), the first report
required under section 601(a) of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1871(a)) that is submitted after the
effective date of such repeals shall include
the number of individuals covered by an order
issued pursuant to section 101(b)(1)(C) of such
Act (as in effect on the day before such
effective date).
* * * * * * *
----------
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
Sec. 2703. Required disclosure of customer communications or records
(a) * * *
* * * * * * *
(h) Judicial Review.--A provider of electronic
communication service or remote computing service may challenge
a subpoena, order, or warrant requiring disclosure of customer
communications or records under this section in--
(1) the United States district court for the
district in which the order was issued; or
(2) the United States district court for the
district in which the order was served.
* * * * * * *
[Pursuant to section 202(a) of H.R. 3845, effective December 31, 2013,
section 2709 is amended to read as such section read on October 25,
2001.]
[Sec. 2709. Counterintelligence access to telephone toll and
transactional records
[(a) Duty to Provide.--A wire or electronic communication
service provider shall comply with a request for subscriber
information and toll billing records information, or electronic
communication transactional records in its custody or
possession made by the Director of the Federal Bureau of
Investigation under subsection (b) of this section.
[(b) Required Certification.--The Director of the Federal
Bureau of Investigation, or his designee in a position not
lower than Deputy Assistant Director at Bureau headquarters or
a Special Agent in Charge in a Bureau field office designated
by the Director, may--
[(1) request the name, address, length of service,
and local and long distance toll billing records of a
person or entity if the Director (or his designee)
certifies in writing to the wire or electronic
communication service provider to which the request is
made that the name, address, length of service, and
toll billing records sought are relevant to an
authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a
United States person is not conducted solely on the
basis of activities protected by the first amendment to
the Constitution of the United States; and
[(2) request the name, address, and length of
service of a person or entity if the Director (or his
designee) certifies in writing to the wire or
electronic communication service provider to which the
request is made that the information sought is relevant
to an authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a
United States person is not conducted solely upon the
basis of activities protected by the first amendment to
the Constitution of the United States.
[(c) Prohibition of Certain Disclosure.--
[(1) If the Director of the Federal Bureau of
Investigation, or his designee in a position not lower
than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office
designated by the Director, certifies that otherwise
there may result 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, no wire or
electronic communications service provider, or officer,
employee, or agent thereof, shall disclose to any
person (other than those to whom such disclosure is
necessary to comply with the request or an attorney to
obtain legal advice or legal assistance with respect to
the request) that the Federal Bureau of Investigation
has sought or obtained access to information or records
under this section.
[(2) The request shall notify the person or entity
to whom the request is directed of the nondisclosure
requirement under paragraph (1).
[(3) Any recipient disclosing to those persons
necessary to comply with the request or to an attorney
to obtain legal advice or legal assistance with respect
to the request shall inform such person of any
applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be
subject to the same prohibitions on disclosure under
paragraph (1).
[(4) At the request of the Director of the Federal
Bureau of Investigation or the designee of the
Director, any person making or intending to make a
disclosure under this section shall identify to the
Director or such designee the person to whom such
disclosure will be made or to whom such disclosure was
made prior to the request, except that nothing in this
section shall require a person to inform the Director
or such designee of the identity of an attorney to whom
disclosure was made or will be made to obtain legal
advice or legal assistance with respect to the request
under subsection (a).
[(d) Dissemination by Bureau.--The Federal Bureau of
Investigation may disseminate information and records obtained
under this section only as provided in guidelines approved by
the Attorney General for foreign intelligence collection and
foreign counterintelligence investigations conducted by the
Federal Bureau of Investigation, and, with respect to
dissemination to an agency of the United States, only if such
information is clearly relevant to the authorized
responsibilities of such agency.
[(e) Requirement That Certain Congressional Bodies Be
Informed.--On a semiannual basis the Director of the Federal
Bureau of Investigation shall fully inform the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate, and the
Committee on the Judiciary of the House of Representatives and
the Committee on the Judiciary of the Senate, concerning all
requests made under subsection (b) of this section.
[(f) Libraries.--A library (as that term is defined in
section 213(1) of the Library Services and Technology Act (20
U.S.C. 9122(1)), the services of which include access to the
Internet, books, journals, magazines, newspapers, or other
similar forms of communication in print or digitally by patrons
for their use, review, examination, or circulation, is not a
wire or electronic communication service provider for purposes
of this section, unless the library is providing the services
defined in section 2510(15) (``electronic communication
service'') of this title.]
Sec. 2709. Counterintelligence access to telephone toll and
transactional records
(a) Duty to Provide.--A wire or electronic communication
service provider shall comply with a request for subscriber
information and toll billing records information, or electronic
communication transactional records in its custody or
possession made by the Director of the Federal Bureau of
Investigation under subsection (b) of this section.
(b) Required Certification.--The Director of the Federal
Bureau of Investigation, or his designee in a position not
lower than Deputy Assistant Director, may--
(1) request the name, address, length of service,
and local and long distance toll billing records of a
person or entity if the Director (or his designee in a
position not lower than Deputy Assistant Director)
certifies in writing to the wire or electronic
communication service provider to which the request is
made that--
(A) the name, address, length of service,
and toll billing records sought are relevant to
an authorized foreign counterintelligence
investigation; and
(B) there are specific and articulable
facts giving reason to believe that the person
or entity to whom the information sought
pertains is a foreign power or an agent of a
foreign power as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801); and
(2) request the name, address, and length of
service of a person or entity if the Director (or his
designee in a position not lower than Deputy Assistant
Director) certifies in writing to the wire or
electronic communication service provider to which the
request is made that--
(A) the information sought is relevant to
an authorized foreign counterintelligence
investigation; and
(B) there are specific and articulable
facts giving reason to believe that
communication facilities registered in the name
of the person or entity have been used, through
the services of such provider, in communication
with--
(i) an individual who is engaging
or has engaged in international
terrorism as defined in section 101(c)
of the Foreign Intelligence
Surveillance Act or clandestine
intelligence activities that involve or
may involve a violation of the criminal
statutes of the United States; or
(ii) a foreign power or an agent of
a foreign power under circumstances
giving reason to believe that the
communication concerned international
terrorism as defined in section 101(c)
of the Foreign Intelligence
Surveillance Act or clandestine
intelligence activities that involve or
may involve a violation of the criminal
statutes of the United States.
(c) Prohibition of Certain Disclosure.-- No wire or
electronic communication service provider, or officer,
employee, or agent thereof, shall disclose to any person that
the Federal Bureau of Investigation has sought or obtained
access to information or records under this section.
(d) Dissemination by Bureau.--The Federal Bureau of
Investigation may disseminate information and records obtained
under this section only as provided in guidelines approved by
the Attorney General for foreign intelligence collection and
foreign counterintelligence investigations conducted by the
Federal Bureau of Investigation, and, with respect to
dissemination to an agency of the United States, only if such
information is clearly relevant to the authorized
responsibilities of such agency.
(e) Requirement That Certain Congressional Bodies Be
Informed.--On a semiannual basis the Director of the Federal
Bureau of Investigation shall fully inform the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate, and the
Committee on the Judiciary of the House of Representatives and
the Committee on the Judiciary of the Senate, concerning all
requests made under subsection (b) of this section.
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 205--SEARCHES AND SEIZURES
* * * * * * *
Sec. 3103a. Additional grounds for issuing warrant
(a) * * *
(b) Delay.--With respect to the issuance of any warrant or
court order under this section, or any other rule of law, to
search for and seize any property or material that constitutes
evidence of a criminal offense in violation of the laws of the
United States, any notice required, or that may be required, to
be given may be delayed if--
(1) the court finds reasonable cause to believe
that providing immediate notification of the execution
of the warrant [may have an adverse result (as defined
in section 2705, except if the adverse results consist
only of unduly delaying a trial)] may endanger the life
or physical safety of an individual, result in flight
from prosecution, result in the destruction of or
tampering with the evidence sought under the warrant,
or result in intimidation of potential witnesses, or is
likely to otherwise seriously jeopardize an
investigation or unduly delay a trial;
* * * * * * *
(3) the warrant provides for the giving of such
notice within a reasonable period not to exceed [30
days after the date of its execution, or on a later
date certain if the facts of the case justify a longer
period of delay.] 7 days after the date of its
execution.
(c) Extensions of Delay.--Any period of delay authorized by
this section may be extended by the court [for good cause
shown, 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.] upon application of the United States
Attorney for the district seeking the delay, for additional
periods of not more than 21 days for each application, if the
court finds, for each application, reasonable cause to believe
that notice of the execution of the warrant may endanger the
life or physical safety of an individual, result in flight from
prosecution, result in the destruction of or tampering with the
evidence sought under the warrant, or result in intimidation of
potential witnesses, or is likely to otherwise seriously
jeopardize an investigation or unduly delay a trial.
* * * * * * *
CHAPTER 223--WITNESSES AND EVIDENCE
* * * * * * *
Sec. 3511. Judicial review of requests for information
(a) * * *
[(b)(1) The recipient of a request for records, a report,
or other information under section 2709(b) of this title,
section 626(a) or (b) or 627(a) of the Fair Credit Reporting
Act, section 1114(a)(5)(A) of the Right to Financial Privacy
Act, or section 802(a) of the National Security Act of 1947,
may petition any court described in subsection (a) for an order
modifying or setting aside a nondisclosure requirement imposed
in connection with such a request.
[(2) If the petition is filed within one year of the
request for records, a report, or other information under
section 2709(b) of this title, section 626(a) or (b) or 627(a)
of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the
Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, the court may modify or set
aside such a nondisclosure requirement if it finds that 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. If, at the time of
the petition, the Attorney General, Deputy Attorney General, an
Assistant Attorney General, or the Director of the Federal
Bureau of Investigation, or in the case of a request by a
department, agency, or instrumentality of the Federal
Government other than the Department of Justice, the head or
deputy head of such department, agency, or instrumentality,
certifies that disclosure may endanger the national security of
the United States or interfere with diplomatic relations, such
certification shall be treated as conclusive unless the court
finds that the certification was made in bad faith.
[(3) If the petition is filed one year or more after the
request for records, a report, or other information under
section 2709(b) of this title, section 626(a) or (b) or 627(a)
of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the
Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, the Attorney General, Deputy
Attorney General, an Assistant Attorney General, or the
Director of the Federal Bureau of Investigation, or his
designee in a position not lower than Deputy Assistant Director
at Bureau headquarters or a Special Agent in Charge in a Bureau
field office designated by the Director, or in the case of a
request by a department, agency, or instrumentality of the
Federal Government other than the Federal Bureau of
Investigation, the head or deputy head of such department,
agency, or instrumentality, within ninety days of the filing of
the petition, shall either terminate the nondisclosure
requirement or re-certify 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. In the event of re-certification, the court may modify
or set aside such a nondisclosure requirement if it finds that
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. If the
recertification that disclosure may endanger the national
security of the United States or interfere with diplomatic
relations is made by the Attorney General, Deputy Attorney
General, an Assistant Attorney General, or the Director of the
Federal Bureau of Investigation, such certification shall be
treated as conclusive unless the court finds that the
recertification was made in bad faith. If the court denies a
petition for an order modifying or setting aside a
nondisclosure requirement under this paragraph, the recipient
shall be precluded for a period of one year from filing another
petition to modify or set aside such nondisclosure
requirement.]
(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.
(B) Application.--Not later than 30 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 180 days.
(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 certification from the
Attorney General, Deputy Attorney General, an Assistant
Attorney General, or the Director of the Federal Bureau
of Investigation, or in the case of a request by a
department, agency, or instrumentality of the Federal
Government other than the Department of Justice, the
head or deputy head of the department, agency, or
instrumentality, of the existence of a result described
in subparagraphs (A) through (D) and a statement of
specific and articulable facts indicating that, absent
a prohibition of disclosure under this subsection,
there may result--
(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.
(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 have a result described in paragraph (2).
(4) Renewal.--A nondisclosure order under this
subsection may be renewed for additional periods of not
longer than 180 days each, upon a determination by the
court that a result described in paragraph (2)
justifies the renewal.
(5) Early termination of nondisclosure order.--A
nondisclosure order the Government applied for under
paragraph (1)(B) ceases to have effect when the
Government discovers that the factual basis for that
order has ceased to exist and the Government so informs
the order's recipient. The Government upon making such
a discovery shall promptly so informs the recipient.
* * * * * * *
----------
SECTION 1114 OF THE RIGHT TO FINANCIAL PRIVACY ACT OF 1978
[Pursuant to section 202(a) of H.R. 3845, effective December 31, 2013,
section 1114(a)(5) is amended to read as such paragraph read on October
25, 2001.]
SPECIAL PROCEDURES
Sec. 1114. (a)(1) * * *
* * * * * * *
[(5)(A) Financial institutions, and officers, employees,
and agents thereof, shall comply with a request for a
customer's or entity's financial records made pursuant to this
subsection by the Federal Bureau of Investigation when the
Director of the Federal Bureau of Investigation (or the
Director's designee in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent in
Charge in a Bureau field office designated by the Director)
certifies in writing to the financial institution that such
records are sought for foreign counter intelligence purposes to
protect against international terrorism or clandestine
intelligence activities, provided that such an investigation of
a United States person is not conducted solely upon the basis
of activities protected by the first amendment to the
Constitution of the United States.
[(B) The Federal Bureau of Investigation may disseminate
information obtained pursuant to this paragraph only as
provided in guidelines approved by the Attorney General for
foreign intelligence collection and foreign counterintelligence
investigations conducted by the Federal Bureau of
Investigation, and, with respect to dissemination to an agency
of the United States, only if such information is clearly
relevant to the authorized responsibilities of such agency.
[(C) On the dates provided in section 507 of the National
Security Act of 1947, the Attorney General shall fully inform
the congressional intelligence committees (as defined in
section 3 of that Act (50 U.S.C. 401a)) concerning all requests
made pursuant to this paragraph.
[(D) Prohibition of certain disclosure.--
[(i) If the Director of the Federal
Bureau of Investigation, or his
designee in a position not lower than
Deputy Assistant Director at Bureau
headquarters or a Special Agent in
Charge in a Bureau field office
designated by the Director, certifies
that otherwise there may result 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, no financial
institution, or officer, employee, or
agent of such institution, shall
disclose to any person (other than
those to whom such disclosure is
necessary to comply with the request or
an attorney to obtain legal advice or
legal assistance with respect to the
request) that the Federal Bureau of
Investigation has sought or obtained
access to a customer's or entity's
financial records under subparagraph
(A).
[(ii) The request shall notify the
person or entity to whom the request is
directed of the nondisclosure
requirement under clause (i).
[(iii) Any recipient disclosing to
those persons necessary to comply with
the request or to an attorney to obtain
legal advice or legal assistance with
respect to the request shall inform
such persons of any applicable
nondisclosure requirement. Any person
who receives a disclosure under this
subsection shall be subject to the same
prohibitions on disclosure under clause
(i).
[(iv) At the request of the
Director of the Federal Bureau of
Investigation or the designee of the
Director, any person making or
intending to make a disclosure under
this section shall identify to the
Director or such designee the person to
whom such disclosure will be made or to
whom such disclosure was made prior to
the request, except that nothing in
this section shall require a person to
inform the Director or such designee of
the identity of an attorney to whom
disclosure was made or will be made to
obtain legal advice or legal assistance
with respect to the request for
financial records under subparagraph
(A).]
(5)(A) Financial institutions, and officers, employees,
and agents thereof, shall comply with a request for a
customer's or entity's financial records made pursuant to this
subsection by the Federal Bureau of Investigation when the
Director of the Federal Bureau of Investigation (or the
Director's designee) certifies in writing to the financial
institution that such records are sought for foreign
counterintelligence purposes and that there are specific and
articulable facts giving reason to believe that the customer or
entity whose records are sought is a foreign power or an agent
of a foreign power as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
(B) The Federal Bureau of Investigation may disseminate
information obtained pursuant to this paragraph only as
provided in guidelines approved by the Attorney General for
foreign intelligence collection and foreign counterintelligence
investigations conducted by the Federal Bureau of
Investigation, and, with respect to dissemination to an agency
of the United States, only if such information is clearly
relevant to the authorized responsibilities of such agency.
(C) On a semiannual basis the Attorney General shall
fully inform the Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on
Intelligence of the Senate concerning all requests made
pursuant to this paragraph.
(D) No financial institution, or officer, employee, or
agent of such institution, shall disclose to any person that
the Federal Bureau of Investigation has sought or obtained
access to a customer's or entity's financial records under this
paragraph.
* * * * * * *
----------
FAIR CREDIT REPORTING ACT
TITLE VI--CONSUMER CREDIT REPORTING
* * * * * * *
Sec. 601. Short title
This title may be cited as the ``Fair Credit Reporting
Act''.
* * * * * * *
[Pursuant to section 202(a) of H.R. 3845, effective December 31, 2013,
sections 626(a), 626(b), and 627 are amended to read as such sections
read on October 25, 2001.]
Sec. 626. Disclosures to FBI for counterintelligence purposes
[(a) Identity of Financial Institutions.--Notwithstanding
section 604 or any other provision of this title, a consumer
reporting agency shall furnish to the Federal Bureau of
Investigation the names and addresses of all financial
institutions (as that term is defined in section 1101 of the
Right to Financial Privacy Act of 1978) at which a consumer
maintains or has maintained an account, to the extent that
information is in the files of the agency, when presented with
a written request for that information, signed by the Director
of the Federal Bureau of Investigation, or the Director's
designee in a position not lower than Deputy Assistant Director
at Bureau headquarters or a Special Agent in Charge of a Bureau
field office designated by the Director, which certifies
compliance with this section. The Director or the Director's
designee may make such a certification only if the Director or
the Director's designee has determined in writing, that such
information is sought for the conduct of an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution of the United States.
[(b) Identifying Information.--Notwithstanding the
provisions of section 604 or any other provision of this title,
a consumer reporting agency shall furnish identifying
information respecting a consumer, limited to name, address,
former addresses, places of employment, or former places of
employment, to the Federal Bureau of Investigation when
presented with a written request, signed by the Director or the
Director's designee in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent in
Charge of a Bureau field office designated by the Director,
which certifies compliance with this subsection. The Director
or the Director's designee may make such a certification only
if the Director or the Director's designee has determined in
writing that such information is sought for the conduct of an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided that
such an investigation of a United States person is not
conducted solely upon the basis of activities protected by the
first amendment to the Constitution of the United States.]
(a) Identity of Financial Institutions.--Notwithstanding
section 604 or any other provision of this title, a consumer
reporting agency shall furnish to the Federal Bureau of
Investigation the names and addresses of all financial
institutions (as that term is defined in section 1101 of the
Right to Financial Privacy Act of 1978) at which a consumer
maintains or has maintained an account, to the extent that
information is in the files of the agency, when presented with
a written request for that information, signed by the Director
of the Federal Bureau of Investigation, or the Director's
designee, which certifies compliance with this section. The
Director or the Director's designee may make such a
certification only if the Director or the Director's designee
has determined in writing that--
(1) such information is necessary for the conduct
of an authorized foreign counterintelligence
investigation; and
(2) there are specific and articulable facts giving
reason to believe that the consumer--
(A) is a foreign power (as defined in
section 101 of the Foreign Intelligence
Surveillance Act of 1978) or a person who is
not a United States person (as defined in such
section 101) and is an official of a foreign
power; or
(B) is an agent of a foreign power and is
engaging or has engaged in an act of
international terrorism (as that term is
defined in section 101(c) of the Foreign
Intelligence Surveillance Act of 1978) or
clandestine intelligence activities that
involve or may involve a violation of criminal
statutes of the United States.
(b) Identifying Information.--Notwithstanding the
provisions of section 604 or any other provision of this title,
a consumer reporting agency shall furnish identifying
information respecting a consumer, limited to name, address,
former addresses, places of employment, or former places of
employment, to the Federal Bureau of Investigation when
presented with a written request, signed by the Director or the
Director's designee, which certifies compliance with this
subsection. The Director or the Director's designee may make
such a certification only if the Director or the Director's
designee has determined in writing that--
(1) such information is necessary to the conduct of
an authorized counterintelligence investigation; and
(2) there is information giving reason to believe
that the consumer has been, or is about to be, in
contact with a foreign power or an agent of a foreign
power (as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978).
* * * * * * *
[Sec. 627. Disclosures to governmental agencies for counterterrorism
purposes
[(a) Disclosure.--Notwithstanding section 604 or any other
provision of this title, a consumer reporting agency shall
furnish a consumer report of a consumer and all other
information in a consumer's file to a government agency
authorized to conduct investigations of, or intelligence or
counterintelligence activities or analysis related to,
international terrorism when presented with a written
certification by such government agency that such information
is necessary for the agency's conduct or such investigation,
activity or analysis.
[(b) Form of Certification.--The certification described
in subsection (a) shall be signed by a supervisory official
designated by the head of a Federal agency or an officer of a
Federal agency whose appointment to office is required to be
made by the President, by and with the advice and consent of
the Senate.
[(c) Confidentiality.--
[(1) If the head of a government agency authorized
to conduct investigations of intelligence or
counterintelligence activities or analysis related to
international terrorism, or his designee, certifies
that otherwise there may result 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, no consumer reporting agency or
officer, employee, or agent of such consumer reporting
agency, shall disclose to any person (other than those
to whom such disclosure is necessary to comply with the
request or an attorney to obtain legal advice or legal
assistance with respect to the request), or specify in
any consumer report, that a government agency has
sought or obtained access to information under
subsection (a).
[(2) The request shall notify the person or entity
to whom the request is directed of the nondisclosure
requirement under paragraph (1).
[(3) Any recipient disclosing to those persons
necessary to comply with the request or to any attorney
to obtain legal advice or legal assistance with respect
to the request shall inform such persons of any
applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be
subject to the same prohibitions on disclosure under
paragraph (1).
[(4) At the request of the authorized government
agency, any person making or intending to make a
disclosure under this section shall identify to the
requesting official of the authorized government agency
the person to whom such disclosure will be made or to
whom such disclosure was made prior to the request,
except that nothing in this section shall require a
person to inform the requesting official of the
identity of an attorney to whom disclosure was made or
will be made to obtain legal advice or legal assistance
with respect to the request for information under
subsection (a).
[(d) Rule of Construction.--Nothing in section 626 shall be
construed to limit the authority of the Director of the Federal
Bureau of Investigation under this section.
[(e) Safe Harbor.--Notwithstanding any other provision of
this title, any consumer reporting agency or agent or employee
thereof making disclosure of consumer reports or other
information pursuant to this section in good-faith reliance
upon a certification of a government agency pursuant to the
provisions of this section shall not be liable to any person
for such disclosure under this subchapter, the constitution of
any State, or any law or regulation of any State or any
political subdivision of any State.
[(f) Reports to Congress.--(1) On a semi-annual basis, the
Attorney General shall fully inform the Committee on the
Judiciary, the Committee on Financial Services, and the
Permanent Select Committee on Intelligence of the House of
Representatives and the Committee on the Judiciary, the
Committee on Banking, Housing, and Urban Affairs, and the
Select Committee on Intelligence of the Senate concerning all
requests made pursuant to subsection (a).
[(2) In the case of the semiannual reports required to be
submitted under paragraph (1) to the Permanent Select Committee
on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, the submittal dates
for such reports shall be as provided in section 507 of the
National Security Act of 1947 (50 U.S.C. 415b).]
* * * * * * *
----------
SECTION 802 OF THE NATIONAL SECURITY ACT OF 1947
[Pursuant to section 202(a) of H.R. 3845, effective December 31, 2013,
section 802 is amended to read as such section read on October 25,
2001.]
[REQUESTS BY AUTHORIZED INVESTIGATIVE AGENCIES
[Sec. 802. (a)(1) Any authorized investigative agency may
request from any financial agency, financial institution, or
holding company, or from any consumer reporting agency, such
financial records, other financial information, and consumer
reports as may be necessary in order to conduct any authorized
law enforcement investigation, counterintelligence inquiry, or
security determination. Any authorized investigative agency may
also request records maintained by any commercial entity within
the United States pertaining to travel by an employee in the
executive branch of Government outside the United States.
[(2) Requests may be made under this section where--
[(A) the records sought pertain to a person who is
or was an employee in the executive branch of
Government required by the President in an Executive
order or regulation, as a condition of access to
classified information, to provide consent, during a
background investigation and for such time as access to
the information is maintained, and for a period of not
more than three years thereafter, permitting access to
financial records, other financial information,
consumer reports, and travel records; and
[(B)(i) 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;
[(ii) information the employing agency deems
credible indicates the person has incurred excessive
indebtedness or has acquired a level of affluence which
cannot be explained by other information known to the
agency; or
[(iii) circumstances indicate the person had the
capability and opportunity to disclose classified
information which is known to have been lost or
compromised to a foreign power or an agent of a foreign
power.
[(3) Each such request--
[(A) shall be accompanied by a written
certification signed by the department or agency head
or deputy department or agency head concerned, or by a
senior official designated for this purpose by the
department or agency head concerned (whose rank shall
be no lower than Assistant Secretary or Assistant
Director), and shall certify that--
[(i) the person concerned is or was an
employee within the meaning of paragraph
(2)(A);
[(ii) the request is being made pursuant to
an authorized inquiry or investigation and is
authorized under this section; and
[(iii) the records or information to be
reviewed are records or information which the
employee has previously agreed to make
available to the authorized investigative
agency for review;
[(B) shall contain a copy of the agreement referred
to in subparagraph (A)(iii);
[(C) shall identify specifically or by category the
records or information to be reviewed; and
[(D) shall inform the recipient of the request of
the prohibition described in subsection (b).
[(b) Prohibition of Certain Disclosure.--
[(1) If an authorized investigative agency
described in subsection (a) certifies that otherwise
there may result 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, no
governmental or private entity, or officer, employee,
or agent of such entity, may disclose to any person
(other than those to whom such disclosure is necessary
to comply with the request or an attorney to obtain
legal advice or legal assistance with respect to the
request) that such entity has received or satisfied a
request made by an authorized investigative agency
under this section.
[(2) The request shall notify the person or entity
to whom the request is directed of the nondisclosure
requirement under paragraph (1).
[(3) Any recipient disclosing to those persons
necessary to comply with the request or to an attorney
to obtain legal advice or legal assistance with respect
to the request shall inform such persons of any
applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be
subject to the same prohibitions on disclosure under
paragraph (1).
[(4) At the request of the authorized investigative
agency, any person making or intending to make a
disclosure under this section shall identify to the
requesting official of the authorized investigative
agency the person to whom such disclosure will be made
or to whom such disclosure was made prior to the
request, except that nothing in this section shall
require a person to inform the requesting official of
the identity of an attorney to whom disclosure was made
or will be made to obtain legal advice or legal
assistance with respect to the request under subsection
(a).
[(c)(1) Notwithstanding any other provision of law (other
than section 6103 of the Internal Revenue Code of 1986), an
entity receiving a request for records or information under
subsection (a) shall, if the request satisfies the requirements
of this section, make available such records or information
within 30 days for inspection or copying, as may be
appropriate, by the agency requesting such records or
information.
[(2) Any entity (including any officer, employee, or agent
thereof) that discloses records or information for inspection
or copying pursuant to this section in good faith reliance upon
the certifications made by an agency pursuant to this section
shall not be liable for any such disclosure to any person under
this title, the constitution of any State, or any law or
regulation of any State or any political subdivision of any
State.
[(d) Any agency requesting records or information under
this section may, subject to the availability of
appropriations, reimburse a private entity for any cost
reasonably incurred by such entity in responding to such
request, including the cost of identifying, reproducing, or
transporting records or other data.
[(e) An agency receiving records or information pursuant to
a request under this section may disseminate the records or
information obtained pursuant to such request outside the
agency only--
[(1) to the agency employing the employee who is
the subject of the records or information;
[(2) to the Department of Justice for law
enforcement or counterintelligence purposes; or
[(3) with respect to dissemination to an agency of
the United States, if such information is clearly
relevant to the authorized responsibilities of such
agency.
[(f) Nothing in this section may be construed to affect the
authority of an investigative agency to obtain information
pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401
et seq.) or the Fair Credit Reporting Act (15 U.S.C. 1681 et
seq.).]
REQUESTS BY AUTHORIZED INVESTIGATIVE AGENCIES
Sec. 802. (a)(1) Any authorized investigative agency may
request from any financial agency, financial institution, or
holding company, or from any consumer reporting agency, such
financial records, other financial information, and consumer
reports as may be necessary in order to conduct any authorized
law enforcement investigation, counterintelligence inquiry, or
security determination. Any authorized investigative agency may
also request records maintained by any commercial entity within
the United States pertaining to travel by an employee in the
executive branch of Government outside the United States.
(2) Requests may be made under this section where--
(A) the records sought pertain to a person who is
or was an employee in the executive branch of
Government required by the President in an Executive
order or regulation, as a condition of access to
classified information, to provide consent, during a
background investigation and for such time as access to
the information is maintained, and for a period of not
more than three years thereafter, permitting access to
financial records, other financial information,
consumer reports, and travel records; and
(B)(i) 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;
(ii) information the employing agency deems
credible indicates the person has incurred excessive
indebtedness or has acquired a level of affluence which
cannot be explained by other information known to the
agency; or
(iii) circumstances indicate the person had the
capability and opportunity to disclose classified
information which is known to have been lost or
compromised to a foreign power or an agent of a foreign
power.
(3) Each such request--
(A) shall be accompanied by a written certification
signed by the department or agency head or deputy
department or agency head concerned, or by a senior
official designated for this purpose by the department
or agency head concerned (whose rank shall be no lower
than Assistant Secretary or Assistant Director), and
shall certify that--
(i) the person concerned is or was an
employee within the meaning of paragraph
(2)(A);
(ii) the request is being made pursuant to
an authorized inquiry or investigation and is
authorized under this section; and
(iii) the records or information to be
reviewed are records or information which the
employee has previously agreed to make
available to the authorized investigative
agency for review;
(B) shall contain a copy of the agreement referred
to in subparagraph (A)(iii);
(C) shall identify specifically or by category the
records or information to be reviewed; and
(D) shall inform the recipient of the request of
the prohibition described in subsection (b).
(b) Notwithstanding any other provision of law, no
governmental or private entity, or officer, employee, or agent
of such entity, may disclose to any person, other than those
officers, employees, or agents of such entity necessary to
satisfy a request made under this section, that such entity has
received or satisfied a request made by an authorized
investigative agency under this section.
(c)(1) Notwithstanding any other provision of law (other
than section 6103 of the Internal Revenue Code of 1986), an
entity receiving a request for records or information under
subsection (a) shall, if the request satisfies the requirements
of this section, make available such records or information
within 30 days for inspection or copying, as may be
appropriate, by the agency requesting such records or
information.
(2) Any entity (including any officer, employee, or agent
thereof) that discloses records or information for inspection
or copying pursuant to this section in good faith reliance upon
the certifications made by an agency pursuant to this section
shall not be liable for any such disclosure to any person under
this title, the constitution of any State, or any law or
regulation of any State or any political subdivision of any
State.
(d) Any agency requesting records or information under this
section may, subject to the availability of appropriations,
reimburse a private entity for any cost reasonably incurred by
such entity in responding to such request, including the cost
of identifying, reproducing, or transporting records or other
data.
(e) An agency receiving records or information pursuant to
a request under this section may disseminate the records or
information obtained pursuant to such request outside the
agency only--
(1) to the agency employing the employee who is the
subject of the records or information;
(2) to the Department of Justice for law
enforcement or counterintelligence purposes; or
(3) with respect to dissemination to an agency of
the United States, if such information is clearly
relevant to the authorized responsibilities of such
agency.
(f) Nothing in this section may be construed to affect the
authority of an investigative agency to obtain information
pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401
et seq.) or the Fair Credit Reporting Act (15 U.S.C. 1681 et
seq.).
Dissenting Views
We oppose H.R. 3845, which unnecessarily weakens America's
counter-terrorism laws and impairs our intelligence-gathering
capabilities. This legislation is nothing more than change for
the sake of change. The majority has seen fit to defy the Obama
Administration's call for full reauthorization of the Act's
expiring provisions and instead placate extreme liberal
interest groups that have decried the very existence of the USA
PATRIOT Act since its enactment in 2001.
To be sure, the majority espouses reforms to our foreign
intelligence or criminal laws, claiming such reforms are needed
to prevent the abuse or misuse of these laws. Such claims are
hollow and without merit. Not only has the majority failed to
provide evidence of the government's misuse or abuse of many of
these provisions, they offer no explanation for how their
proposed reforms will correct any such supposed misuse. It is
apparent that they are not even certain how their legislation
will affect the use of these laws.
With every ``change for the sake of change'' this bill
makes, the majority threatens the ongoing and critical
collection of foreign intelligence and risks empowering radical
jihadists, terrorists, and spies to ramp up their efforts to
attack the United States. This legislation also signals to the
courts that Congress urges a different interpretation of these
provisions, but with little to no guidance as to what ill
Congress seeks to cure. This is a dangerous risk to take with
our foreign intelligence laws--laws that should only be amended
when absolutely necessary.
TITLE I--USA PATRIOT ACT RELATED AMENDMENTS
Roving Wiretaps
Section 101, as introduced, requires the government to
include additional information in applications to the Foreign
Intelligence Surveillance Court (``FISC'')for orders that
authorize wiretap surveillance of a foreign intelligence
target. In cases where the identity of the target of the
surveillance order is unknown, the government must provide
additional information ``sufficient to allow a judge to
determine that the target is a single individual.''
Liberal interest groups have taken issue with so-called
``John Doe'' surveillance orders. In testimony before the
Constitution Subcommittee, the ACLU wrote that the authority
gave law enforcement officials ``an inappropriate level of
discretion'' because it ``does not require the government to
name the target, or to make sure its roving wiretaps are
intercepting only the target's communications.'' The ACLU
further argues that roving wiretaps should have the same fourth
amendment warrant requirements as Title III criminal wiretaps.
This assertion fails to acknowledge the key differences
between the two investigative tools. Title III wiretaps are
used to investigate Federal crimes, while Foreign Intelligence
Surveillance Act (``FISA'') wiretaps are used in national
security and foreign intelligence investigations. Moreover, the
wiretaps rely on two different probable cause standards (e.g.,
with FISC court orders, the ``probable cause'' showing is not
of criminal activity, but of a connection between that target
and a ``foreign power'').
We note that the provision, as introduced, does not go as
far as to align the requirements of FISC court orders with
those of Title III (criminal) wiretaps, but the language will
require law enforcement officials to clear a higher evidentiary
bar than that of current law. This new language is troublesome
as it adds, for no demonstrated reason, additional burdens to
the already substantial list of requirements for obtaining a
FISC court order for these important tools.
The manager's amendment offered by Chairman Conyers
corrects what we can only presume was a significant drafting
error in the roving wiretap provision. In an attempt to address
the misperceived ``John Doe'' roving wiretap, the underlying
bill actually limits all FISA surveillance to a single
individual target. This is unworkable because FISA authorizes,
among other things, the surveillance of ``foreign powers,''
which presumably involve much more than a single individual.
The manager's amendment applies this limitation just to the
roving wiretap provision and not all electronic surveillance.
But even this language attempts to solve a problem that does
not exist and for which no factual record has been developed.
As with so many provisions in this bill, the change to the
roving wiretap provision is change for the sake of change.
FISA Business Records
Standard
Section 103, as introduced, reverts back to the pre-9/11
standard of ``specific and articulable facts,'' which proved
cumbersome for the intelligence community's use of this and
other provisions with the same standard. Current law already
imposes significant requirements on the government in its
applications for business records in national security and
terrorism cases. The government must submit a statement of
facts showing reasonable grounds to believe that the business
records sought are relevant to an authorized investigation.
More importantly, we know that business records authority
has been used to support important and highly sensitive
intelligence collection operations. And we also know that by
returning to a specific and articulable standard, we risk
terminating or significantly curtailing these operations.
Increasing the standard to require ``specific and
articulable facts'' will not, as the majority asserts, provide
additional civil liberties protections to Americans. Current
law already protects the free speech rights of Americans by
preventing the use of this authority solely on the basis of
activities protected by the first amendment. Such a standard
will, however, provide greater protection to terrorists or
spies by limiting the government's use of this authority.
We are pleased that Mr. Schiff offered an amendment to
remove the specific and articulable facts standard and we
supported this improvement to the bill. However, Mr. Schiff's
amendment went further to delete a provision in current law
instructing that business records sought by the government are
presumptively relevant if the government shows that the records
sought pertain to: (a) a foreign power or an agency of a
foreign power; (b) the activities of a suspected agent of a
foreign power who is the subject of such an authorized
investigation; or (c) an individual in contact with, or known
to, an agent of a foreign power who is the subject of such
authorized investigation.
Although we appreciate Mr. Schiff's intent to reach a
compromise for the business records standard, his amendment
sought to remove a provision without a full understanding of
the consequences. We received no testimony or other evidence
that the presumption of relevance is the source of any
malfeasance with business records orders. Nor are we aware of
how removing this presumption corrects any perceived misuse of
these court orders. And we know that the affected Executive
Branch agencies did not have an opportunity to weigh in on this
important question.
For these reasons, Mr. Lungren offered a second-degree
amendment to maintain the current presumption of relevance. We
indicated to the majority that if they accepted Mr. Lungren's
amendment, we would support Mr. Schiff's amendment. The
majority declined and opposed Mr. Lungren's amendment.
Therefore, despite our support for removing the specific and
articulable facts standard, we were forced to oppose Mr.
Schiff's amendment due the unnecessary and unjustified removal
of the presumption of relevance.
Library and Bookseller Records
As introduced, section 103 exempts library patron lists and
book customer lists from the universe of ``tangible things''
for which a business record order may be sought. The bill also
prohibits any application for records of ``a bookseller or
library documentary materials that contain personally
identifiable information concerning a patron of a bookseller or
library.''
The bill broadly defines ``bookseller'' as ``any person or
entity engaged in the sale, rental or delivery of books,
journals, magazines, or other similar forms of communication in
print or digitally.'' The bill also broadly defines the terms
``personally identifiable information'' and ``documentary
materials.''
This prohibition is completely unnecessary and creates a
safe-haven for terrorists to utilize America's libraries,
bookstores, and websites to research and study bomb-making or
other dangerous topics.
The manager's amendment replaces this outright prohibition
with the heightened standard of ``specific and articulable
facts'' for library and bookseller records. This change,
however, is still unacceptable.
The 2005 USA PATRIOT Act reauthorization provided
heightened protections for library and bookstore business
records. Applications for orders seeking library circulation
records, library patron lists, book sales records, and book
customer lists may only be approved by the Director of the
Federal Bureau of Investigation, the Deputy Director of the
Federal Bureau of Investigation, or the Executive Assistant
Director for National Security. And this authority cannot be
further delegated. And business records orders--which are
issued by the FISC--can only be accessed as part of a foreign
intelligence, international terrorism, or clandestine
intelligence investigation.
Moreover, as noted above, the business records provision
currently protects the free speech rights of Americans by
preventing the use of this authority solely on the basis of
activities protected by the first amendment. The majority
continues to operate under the misguided notion that library
and bookseller records are of particular interest to Federal
investigators. There is simply no evidence to support this
belief and therefore no justification for imposing a heightened
standard for library or bookseller records.
Mr. Gallegly offered an amendment to strike the portion of
the manager's amendment that creates a heightened standard for
library and bookseller business records, which the majority
rejected.
Conclusive Treatment
Section 103 also eliminates the current requirement that
the FISC treat as conclusive the government's certification
that disclosure may endanger the national security of the
United States or interfere with diplomatic relations, unless
the court finds that such certification was made in bad faith.
By striking the conclusive treatment provision, the
majority is instructing the FISC to afford no weight to the
government's certification. This, despite the fact that Federal
courts have long recognized that the President and the
Executive Branch, as the experts on national security and
foreign intelligence information, must be afforded deference in
their determinations that the disclosure of certain information
may endanger America.
``[C]ourts traditionally have been reluctant to intrude
upon the authority of the Executive in . . . national security
affairs,''\1\ and the Supreme Court has acknowledged that
terrorism may provide the basis for arguments ``for heightened
deference to the judgments of the political branches with
respect to matters of national security.''\2\
---------------------------------------------------------------------------
\1\Department of Navy v. Egan, 484 U.S. 518, 530 (1988).
\2\Zadvydas v. Davis, 533 U.S. 678, 696 (2001).
---------------------------------------------------------------------------
Last December, the Second Circuit Court of Appeals issued a
decision in Doe v. Mukasey\3\ relating to the nondisclosure
provision of certain National Security Letters. Like business
records, National Security Letters afford conclusive treatment
of the government's certification that disclosure may endanger
the national security of the United States or interfere with
diplomatic relations.
---------------------------------------------------------------------------
\3\549 F.3d 861 (2nd Cir. 2008)
---------------------------------------------------------------------------
In Doe, the court held this conclusive treatment of NSL
nondisclosure unconstitutional as inconsistent with strict
scrutiny standards for a content-based prior restraint on first
amendment protected speech. However, the court did not find
that in the absence of conclusive treatment, there should be no
weight afforded the government's certification.
On the contrary, the court continued to acknowledge the
precedents that a level of deference must still be afforded the
Executive Branch's assessment of dangers posed to national
security by disclosure of a National Security Letter.\4\ The
same holds true for business records orders.
---------------------------------------------------------------------------
\4\Id. at 881.
---------------------------------------------------------------------------
For this reason, Mr. Lungren offered an amendment to
instruct the FISC to afford ``substantial weight'' to the
government's certification. Despite the substantial number of
long-standing precedents requiring courts to provide deference
to the Executive Branch on national security matters, we were
concerned that the FISC would interpret the removal of
conclusive treatment with no standard in its stead as Congress'
intent that no deference be afforded the government for the
purposes of business record non-disclosure.
The Supreme Court has repeatedly afforded even greater
deference than the ``substantial weight'' called for in Mr.
Lungren's amendment. ``The Court also has recognized `the
generally accepted view that foreign policy was the province
and responsibility of the Executive. As to these areas of
Article II duties the courts have traditionally shown the
utmost deference to Presidential responsibilities.'''\5\
---------------------------------------------------------------------------
\5\Egan, 484 U.S. at 529-30 (citations omitted).
---------------------------------------------------------------------------
Despite this well-established rule, the majority opposed
Mr. Lungren's amendment--a potential signal to the FISC that
Congress intends no deference whatsoever even though Executive
Branch officials are entitled to deference because they have
awareness of the full scope of intelligence and investigative
information concerning the matter for which the information is
sought.
Sunset of Lone Wolf
Section 104 of the bill repeals the so-called ``lone wolf''
provision, which is set to expire on December 31, 2009. Section
6001 of the Intelligence Reform and Terrorism Prevention Act of
2004 (IRTPA) amended the definition of ``agent of a foreign
power'' in FISA (50 U.S.C. Sec. 1801(b)) to include the ``lone
wolf'' definition. This definition allows the government to
surveil a non-U.S. person who is engaging in international
terrorism or activities in preparation of international
terrorism even if that target is not a foreign power or an
agent of a foreign power.
FISA was originally enacted in 1978 to address surveillance
of ``foreign powers'' and ``agents of a foreign power.'' In
1978, America was in the midst of the Cold War, and Congress'
primary concern was authorizing the surveillance of foreign
powers, such as the Soviet Union, and their agents.
Congress modernized FISA in 2004 to apply to a lone-wolf
terrorist following the terrorist attacks of 9/11 faced with
the stark reality that our enemies had changed. No longer were
we concerned simply with foreign governments, but also with
illusive and often anonymous terrorists spread throughout the
world who may not fit the definition of ``agent of a foreign
power'' as written in 1978.
To date, the government has never acknowledged use of this
provision. The majority relies upon this as justification to
let the provision expire. These authorities were enacted after
9/11 to fill gaps in the law. The fact that this particular gap
was closed may have deterred a lone terrorist from attacking
within this country since the provision was enacted.
It would be short-sighted to limit the government's ability
to monitor an individual foreign terrorist who is working alone
within the United States. It is not so hard to imagine a
terrorist who might break away from al-Qaeda for ideological
reasons and set out to commit terrorist acts on their own.
There is no reason why our intelligence gathering tools
should not be used against terrorists seeking to attack our
country simply because they are not known to be affiliated with
a terrorist organization. It makes no sense to allow these
individual terrorists who seek to kill Americans to slip
through the cracks simply because they are not outwardly
associated with al-Qaeda or another terrorist organization.
Ranking Member Smith offered an amendment to strike the
repeal of section 6001 and extend the sunset of the lone wolf
provision to December 31, 2013. This amendment failed on a tie
vote.
In rejecting Mr. Smith's amendment, the majority argued
that the government can use Title III criminal wiretaps to
monitor terrorists. However, criminal wiretaps are ill-suited
for use in intelligence operations. First, once criminal
proceedings are instigated, the sixth amendment provides a
criminal defendant with the right to a public trial, to be
confronted with the witnesses against him, and to present
relevant evidence in his defense.\6\ In some prosecutions,
particularly terrorism and espionage prosecutions, the
defendant's presentation of evidence in a public trial may risk
the national security of the United States.
---------------------------------------------------------------------------
\6\U.S. Const. amend VI.
---------------------------------------------------------------------------
Moreover, FISA wiretaps are used to collect foreign
intelligence information that is highly classified, generally
used for purposes other than a criminal trial, and not intended
to be given to the target. Further, FISA protects the sources
and methods of the government surveillance; this is information
that criminal wiretaps do not protect. Gathering intelligence
through the use of a criminal wiretap could tip off the
terrorists to the strategies we use to track terrorists and
intercept them before they strike.
The majority contends that all of these concerns are
addressed by the Classified Information Procedures Act
(CIPA).\7\ CIPA ``provides pretrial procedures that will permit
the trial judge to rule on questions of admissibility involving
classified information before introduction of the evidence in
open court.''\8\ These procedures are intended to provide a
means for the court to determine whether classified information
is actually material to the defense.
---------------------------------------------------------------------------
\7\P.L. 96-456, codified at 18 U.S.C. app. 3 Sec. 1-16.
\8\S. Rept. 96-823, at 1.
---------------------------------------------------------------------------
Despite the majority's contention, CIPA is an inadequate
alternative to FISA. First, foreign intelligence surveillance
orders are approved by the FISC, which is comprised of 11
Federal district judges with an expertise in and extensive
knowledge of the government's intelligence-collection
operations. It was Congress' prerogative when it adopted FISA
in 1978 that this subset of Federal judges be designated by the
Chief Justice to serve on the FISC. Now the majority seeks to
depart from Congress' intent and open-up the approval of these
highly-sensitive orders to any and all Federal district court
judges for lone terrorist investigations.
Second, CIPA is relevant only once criminal charges have
been brought against a defendant. It is intended to provide
uniform procedures for determining the admissibility of
evidence on a case-by-case basis. This creates two
uncertainties: (1) whether foreign intelligence information
collected against a lone terrorist remain secure in the interim
between collection and the commencement of criminal
proceedings, if any; and (2) whether CIPA will be appropriately
applied in each instance to protect the disclosure of
classified information.
Although CIPA is useful for protecting classified
information once a criminal proceeding has commenced, it and
Title III wiretaps are a poor substitute to foreign
intelligence collection under FISA.
Criminal wiretaps also require ``live minimization'' to
ensure that the government does not gather evidence on
protected activities. Live minimization is nearly impossible in
foreign intelligence collection because most of the information
captured by FISA wiretaps is in a foreign language. It is
recorded live, but later translated by linguists at
intelligence agencies. Under the Title III process, it would be
nearly impossible for the government to engage in ``live
minimization'' of predominantly foreign language information.
Delayed-Notice Search Warrants
Current law codifies the court's ability to delay the
notice to the target of a search if it finds that notice
``may'' have an adverse result. Under 18 U.S.C. Sec. 3103a,
notice of a search warrant may be delayed if the issuing court
finds reasonable cause to believe that providing immediate
notification of the execution of the warrant may have the
adverse result of (1) endangering the life or physical safety
of an individual; (2) flight from prosecution; (3) destruction
of or tampering with evidence; or (4) intimidation of potential
witnesses.\9\ In some circumstances, the statute further allows
the court to delay notification if such notification would
seriously jeopardize an investigation or unduly delay a trial.
---------------------------------------------------------------------------
\9\18 U.S.C. Sec. Sec. 3103a(b)(1); 2705(a)(2).
---------------------------------------------------------------------------
Section 106 of this bill changes the standard for delayed
notice from ``may'' to ``will'' have an adverse result. This
change begs the question of how a court could ever determine
that an adverse result ``will'' result unless notification is
already delayed. The answer is it won't. Although Federal
judges are very able and intelligent, they do not have the
ability to accurately foresee the future. This legislation
ignores that reality and would require the court to make a
conclusive finding about the future. This requirement is based
on an unattainable standard that will cripple the use of a
decades-old, constitutional authority.
In 1979, 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.\10\ Three Federal courts of appeals had
considered the constitutionality of delayed-notice search
warrants since 1979 and upheld their constitutionality.\11\ The
USA PATRIOT Act codified the process for use of delayed notice
search warrants, ensuring that notice may not be delayed
indefinitely. The proposed changes in this bill revise these
provisions to make them unduly burdensome to the government and
the court.
---------------------------------------------------------------------------
\10\See Dalia v. United States, 441 U.S. 238 (1979); see also Katz
v. United States, 389 U.S. 347 (1967).
\11\April 4, 2005 U.S. Department of Justice letter to Senator
Specter. p. 3 citing United States v. Freitas, 800 F.2d 1451 (9th Cir.
1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); United
States v. Simons, 206 F.3d 392 (4th Cir. 2000).
---------------------------------------------------------------------------
As introduced, section 106 also eliminates the court's
ability to delay notification if such notification would
seriously jeopardize an investigation or unduly delay a trial.
Of particular concern is the ``seriously jeopardizing an
investigation'' justification. Federal agents investigating a
terrorism case may have grounds to conduct a search of a
suspect's home, office, storage unit, or other place, but not
be prepared to bring an indictment or arrest the suspect.
It is also very likely that there is no evidence to suggest
that this suspect will (1) endanger the life or physical safety
of an individual, (2) flee from prosecution, (3) destroy or
tamper with evidence, or (4) intimidate a witness. But that
doesn't mean that we want to alert a terrorist to the fact that
he is being investigated. Eliminating the ``seriously
jeopardizing an investigation'' as a reason for delaying
notification could force law enforcement agents to alert a
terrorist to the fact that he is the subject of an
investigation.
Mr. Issa offered an amendment to strike section 106. The
majority sought an opportunity to discuss a compromise with Mr.
Issa, and he withdrew his amendment. Mr. Issa offered a second
amendment to reinstate the ``may'' standard and authorize the
court to approve of delayed notice if the court finds that such
a delay ``is likely to'' seriously jeopardize an investigation
or unduly delay a trial. While this is a significant step
towards maintaining the integrity of delayed-notice search
warrants, we will seek the input of the Justice Department on
the ``is likely to'' standard before the bill is considered on
the House floor and we hope the majority will be willing to
make changes that may be sought by the Administration.
Despite this small step towards compromise, the Majority
took no further steps to limit the additional damage this
legislation wreaks upon the statute as currently written.
Section 106 still amends the provision that requires that
notice of a delayed search warrant be given within a reasonable
period. Under current law, the government must inform the
target of the search within thirty days. This legislation only
allows seven days.
Lastly, section 106 still amends the provision that allows
the government to extend the period of delay in notifying the
target of the search, if there is a need to do so. Under
current law, the government may show cause to the court that
the facts of the case necessitate further delay, for up to
ninety days. This legislation mandates that the United States
Attorney (and not a designee) for the district in which an
extension order is sought make a written application to the
court for further delays of not more than twenty-one days.
Also, the court can only grant the application if it once again
looks into the future and makes a finding that the extended
delay is necessary because notice to the target of the search
will result in (1) endangering the life or physical safety of
an individual; (2) flight from prosecution; (3) destruction of
or tampering with evidence; or (4) intimidation of potential
witnesses.
The changes to this authority create substantial new
burdens for law enforcement officials to overcome if they wish
use delayed notice search warrants. The section also unduly
limits the court's discretion in granting or extending delayed
notice warrants. All of this is done without any evidence of
past abuse of this limited authority. Section 106 is the very
definition of change for the sake of change.
Criminal Pen Register and Trap and Trace Devices
The criminal code has provided Federal law enforcement
agencies with the authority to use pen registers and trap and
trace devices since 1986. The code also authorizes State and
local law enforcement officers to make an application to a
State court for use of these tools in State criminal
investigations, where authorized.
The current standard for a pen register is that ``the
information likely to be obtained is relevant to an ongoing
criminal investigation by that agency.'' As introduced, section
107 amended the standard to require a ``statement of `specific
and articulable facts' by the applicant to justify the belief
of the applicant that the information likely to be obtained is
relevant to an ongoing criminal investigation being conducted
by that agency.''
The underlying bill unnecessarily elevates the standard for
criminal pen registers and trap and trace devices. There is no
evidence of any abuse of this criminal authority and therefore
there was no reason to amend this provision at all, and
certainly not in a reauthorization of the USA PATRIOT Act.
Use of a pen register or trap and trace device is not a
search under the fourth amendment because the devices do not
allow the collection of any content. As the Supreme Court noted
in 1979, ``Indeed, a law enforcement official could not even
determine from the use of a pen register whether a
communication existed. These devices do not hear sound. They
disclose only the telephone numbers that have been dialed--a
means of establishing communication. Neither the purport of any
communication between the caller and the recipient of the call,
their identities, nor whether the call was even completed is
disclosed by pen registers.''\12\
---------------------------------------------------------------------------
\12\Smith v. Maryland, 442 U.S. 735, 741 (1979) (citations
omitted).
---------------------------------------------------------------------------
For reasons beyond our understanding, the bill and the
manager's amendment apply these proposed changes to all
Federal, State, and local criminal investigations--well beyond
the limited scope of FISA. The majority initially ignored the
strong opposition of the National District Attorneys
Association, the National Sheriffs' Association, the Fraternal
Order of Police, and the International Association of Chiefs of
Police, all of whom agreed that the proposed changes to
criminal pen register and trap and trace devices would unduly
burden State and local law enforcement agencies that regularly
use these tools in State criminal investigations.
In an effort to preserve this long-standing investigative
tool, Mr. Rooney offered an amendment to strike section 107
from the bill. The amendment was rejected by many of our
colleagues in the majority and was ultimately defeated.
However, a scant time later, Mr. Schiff offered an amendment
to, inter alia, strike the section. In a remarkable turnaround,
this amendment received the support of the majority and was
approved. While we certainly do not approve of this method of
legislating, we do approve of this final result.
FISA Pen Register and Trap and Trace Devices
Section 108, as introduced, amends the FISA pen register/
trap and trace (PR/TT) standard to require ``a statement of the
specific and articulable facts relied upon by the applicant to
justify the belief of the applicant 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 . . .''
Current law already imposes significant burdens on the
government in its efforts to obtain pen registers in national
security and terrorism cases. The government must already
obtain court approval and certify that the information sought
is foreign intelligence information or is relevant to an
investigation to protect against terrorism.
Pen registers and trap and trace devices are not wiretaps.
These tools cannot be used to collect the content of
communications. FISA's PR/TT authority also explicitly
safeguards first amendment rights. It requires that any
``investigation of a United States person is not conducted
solely upon the basis of activities protected by the first
amendment to the Constitution.''
Mr. Rooney offered an amendment to strike the heightened
standard of specific and articulable facts from this section.
We are pleased that the majority realized the significant
limitations such a standard would place on the use of FISA PR/
TT authority and approved Mr. Rooney's amendment.
Section 108, as introduced, also requires a PR/TT
application to include a statement of proposed minimization
procedures and requires the court to find that such procedures
meet the definition. Minimization procedures are intended to
limit the retention, and regulate the dissemination, of non-
publicly available information concerning unconsenting U.S.
persons, consistent with the need of the United States to
obtain, produce, and disseminate foreign intelligence
information. These procedures have traditionally been applied
to criminal and FISA wiretaps, but in recent years were also
applied to FISA business records orders.
Unlike with other minimization procedures in national
security law, these procedures are unnecessary and unworkable,
as pen register information by definition does not contain
content. Under Federal law, information collected ``shall not
include the contents of any communication.''
The manager's amendment offered by Chairman Conyers
attempts to curb the breadth of PR/TT minimization by limiting
its application to ``extraordinary circumstances.'' Although
this revised language narrows the instances in which the FISC
may require minimization, the bill still requires the
government to submit minimization procedures in every PR/TT
application. This is extremely burdensome and unnecessary
without any justification in the scant factual record developed
by the Committee for such an important piece of legislation.
The changes in the manager's amendment do not resolve the
overarching questions of (1) whether the government can even
apply minimization procedures to PR/TT data; (2) how burdensome
such a requirement will be the use of this tool; (3) has there
been abuse or misuse of PR/TT authority and would any such
misuse actually be corrected or alleviated through
minimization? Congress should not revise FISA PR/TT authority
without the answers to these questions.
Public Reporting on FISA
Section 6002 of IRTPA directs the Attorney General to
provide semi-annual reports to the House and Senate
Intelligence and Judiciary Committees providing, in part, the
``aggregate number of persons targeted for orders issued under
FISA, including a breakdown of (1) electronic surveillance, (2)
physical searches, (3) pen registers, (4) business record
orders, (5) acquisitions inside the U.S. of persons located
outside the U.S., and (6) other acquisitions targeting U.S.
persons outside the U.S.
Section 109 of the bill requires the Attorney General to
make this information publicly available. This is yet another
attempt by the majority to ``declassify'' sensitive, national
security information. There is no need to make such reports
public. First, this change is unnecessary for Congress'
oversight purposes. The committees of jurisdiction already
receive bi-annual classified reports under this requirement.
Second, this information is classified and the authority to
declassify information rests with the President, not Congress.
Congress cannot circumvent this reality simply by dictating
public release of classified information in a statute. Third,
the amendment requires the carte blanche release of all
information in the bi-annual reports with no regard as to
whether such information should be divulged or to what extent.
Declassifying this information does not just make it available
to the American people. It makes it available to our enemies as
well.
It would be careless of Congress, under the guise of
transparency, to require the public reporting of highly
classified information. To this end, Mr. Coble offered an
amendment to strike section 109. After receiving assurances
from Chairman Conyers that we would work in a bipartisan
fashion with the Justice Department to determine what, if any,
information can be released publicly, Mr. Coble withdrew his
amendment. We will work with the majority before the bill comes
before the full House to resolve this substantively and
constitutionally defective provision.
TITLE II--NATIONAL SECURITY LETTER REFORM
Sunset
Section 202 sunsets current national security letter
authority on December 31, 2013, with the effect of returning
the relevant national security letter statutes to their pre-9/
11 standard ((1) relevant to an authorized investigation, and
(2) that the FBI had specific and articulable facts giving
reason to believe that information requested pertained to a
foreign power or agent of a foreign power, such as a terrorist
or a spy)). Through an audit covering the years 2003 to 2005,
inaccuracies were found in records related to the issuance and
reporting of NSLs and violations of procedures in place to
govern the issuance, use, and oversight of NSLs. This naturally
caused great concern in Congress and at the highest level of
the FBI evoking efforts to correct and better oversee the use
of this important law enforcement tool.
It would be understandable if the purpose of the sunset
were to provide leverage to demand accountability and give
Congress oversight. However, indications by the majority appear
to reflect a desire to actually return to the old standard--
requiring `specific and articulable facts' that the information
pertained to a foreign government, terrorist, or spy. This
prior standard prevented investigators from acquiring records
that were relevant to an ongoing international terrorism or
espionage investigation. It makes no sense to roll back the
2001 reforms for NSLs. Criminal investigators have long been
able to use grand jury subpoenas to obtain many of the same
records so long as they are relevant to their investigation.
Why should we have a more stringent standard for national
security investigations?
Standard
Section 204 of the bill requires an official with authority
to issue a national security letter to document and retain, in
a separate writing, 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 effectively changes the focus of the
``relevance'' required under current law from ``relevant to an
authorized investigation'' to ``pertaining to'' a ``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--thus creating
a more exacting standard for the government to meet which will
inevitably limit the scope of information that the government
can seek even if it is related to an authorized national
security investigation. This requirement keeps the FBI from
using NSLs to develop evidence at the early stages of an
investigation, when they are the most useful, that can be used
to establish links between terrorists, terrorist funding
support, or those engaged in espionage, because it has not yet
been established that they are related to a foreign power or an
agent of a foreign power.
By requiring a separate writing documenting specific and
articulable facts that information sought pertains to a foreign
power or agent of a foreign power, it effectively rolls back
the standard for NSLs to the pre-USA PATRIOT Act standard
without explicitly doing so in the NSL certification to the NSL
recipient. 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.
National Security Letters are similar to administrative
subpoenas, which almost universally require only a showing of
relevance to the particular investigation; thus the change to
the NSL standard in the original USA PATRIOT Act.
Mr. Chaffetz offered an amendment to strike section 204,
but it was rejected by the majority. We find it ironic that the
majority insists upon a heightened standard for foreign
intelligence and terrorism investigations, yet just recently
overwhelmingly approved a significantly lower standard for
certain health care investigations. Section 1640 of H.R. 3962,
the Affordable Health Care for America Act, allows the
Department of Health and Human Services to issue administrative
subpoenas to insurance companies during investigations of
decisions to exclude benefits.
The standard for issuing an administrative subpoena under
H.R. 3962 is extremely low. The information sought must simply
``relate to'' the matter under investigation--a standard well
below the current relevance standard for NSLs and most
administrative subpoenas. It is important for the American
people to understand this distinction. The majority wants to
make it easier for the government to investigate insurance
companies than to investigate terrorists plotting to kill
Americans.
Disclosure for Law Enforcement Purposes
Section 206 requires the Attorney General to authorize the
use of any information acquired or derived from a national
security letter in a criminal proceeding. For reasons beyond
our comprehension, the majority appears to believe that the
third-party records obtained through a NSL in a counter-
terrorism or intelligence investigation should not be used in a
terrorism or espionage trial. Why does the majority want to
hinder the prosecution of terrorists and spies? Current law
does not require such authorization for NSLs because the
information obtained through NSLs, like the information
obtained through a grand jury or administrative subpoena, is
entirely admissible in a criminal trial.
The manager's amendment amends section 206 to allow the
Attorney General to delegate this disclosure authority to other
officials, but only one that has attained the rank of Section
Chief of a division of the Department of Justice. The amendment
also deletes language that would have required such
authorization for the use of any information derived from a
NSL.
These changes do little to alleviate the devastating
effects of this provision. Perhaps the single most important
lesson of 9/11 was the importance of allowing our law
enforcement and national security investigators to share
information in order to detect and stop terrorists before they
strike.
This section creates administrative hurdles that make it
much more difficult for intelligence agents to share
information they obtained via a national security letter with
their law enforcement brethren. By creating these extra steps
for approving disclosure of certain information, the Committee
will likely ensure that national security agents will avoid the
hassle of the disclosure process.
When Congress passed the USA PATRIOT Act, we recognized
that artificial legal walls between these criminal and national
security agents, whether real or perceived, were an impediment
to effective criminal and national security investigations.
For more than eight years, Members of Congress have
reiterated that effective and timely information sharing is
critical to effective investigations, even among investigators
and prosecutors with seemingly divergent missions. Congress has
demanded nothing less than complete and open information
sharing between such investigations to protect the American
people and prevent another event like the 9/11 attacks.
Despite this consistent mandate since 9/11, the majority
now seems intent upon sending the opposite message and is
demanding that law enforcement officials once again erect
internal walls that compartmentalize information gathered from
counterterrorism and counterintelligence investigations from
use in criminal investigations or proceedings.
Judicial Review of National Security Letter Nondisclosure Order
Section 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 ``may'' issue a nondisclosure order for no longer than
180 days, but a court could still refuse to do so with the
current language.
The government can seek renewals of nondisclosure orders
for additional periods of not longer than 180 days each. If
there comes a time when the facts supporting a nondisclosure
order issued by the court cease to exist, this section requires
the government to promptly notify a recipient who sought
judicial review of a nondisclosure order that the nondisclosure
is no longer in effect.
Most of Section 207 is aimed at codifying Doe v.
Mukasey\13\ which held that open-ended nondisclosure
requirements for NSL recipients without meaningful judicial
review are an unconstitutional prior restraint on the first
amendment speech of the recipient. It further held that while
high level government official certifications regarding the
potential harms from disclosure could be provided deference by
reviewing district courts, they could not be a ``conclusive
certification'' precluding meaningful district court review of
the potential harms if the recipient challenged. The FBI
currently provides notice of right to judicial review and
initiates timely judicial review upon request by the recipient
of any NSL pursuant to Doe v. Mukasey.
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\13\549 F.3d 861 (2nd Cir. 2008)
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This section, however, goes well beyond the mandate in Doe
or the current procedures provided by the FBI pursuant to Doe.
First, this section requires the government to provide to the
court in its initiation of judicial review a ``statement of
specific and articulable facts indicating that, absent a
prohibition of disclosure under this section, there 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.''Neither current law nor this bill requires ``specific
and articulable facts'' be provided to the recipient to justify
the initial non-disclosure. The current standard is ``certifies
that [in the absence of nondisclosure] there may result [an
enumerated harm].''
Moreover, this bill provides no deference to the government
in the standard to be used by the court in reviewing a
challenge to a nondisclosure order. Although Doe rejected the
concept of a conclusive certification by the government, it
most certainly advocated deference to the government.
Specifically, the court interpreted the statute ``to place on
the Government the burden to show a ``good'' reason to believe
that disclosure may result in an enumerated harm . . . and to
place on a district court an obligation to make the `may
result' finding only after consideration, albeit deferential,
of the Government's explanation concerning the risk of an
enumerated harm.''
This section also attempts to limit renewal of
nondisclosure to 180 days. So, even if the government prevails
in meeting its burden for the nondisclosure order, such an
order will only extend for an additional 180 days and the court
must make a separate finding that the government's reason for
nondisclosure justifies the renewal of such order.
We have no objection to language that accurately codifies
the court's remedy in Doe. However, this section goes well
beyond Doe and for no apparent reason except change for the
sake of change. We oppose these additional and unnecessary
requirements on judicial review of NSL non-disclosure.
Minimization Procedures
Section 208, as introduced, requires the Attorney General
to establish minimization procedures to limit the acquisition
and retention of, and prohibit dissemination of, information
obtained on nonconsenting U.S. persons through NSLs--consistent
with the need of the United States to obtain, produce, and
disseminate foreign intelligence. Section 208 also requires
that the minimization procedures be transmitted to the House
and Senate Judiciary Committees and the House and Senate
Intelligence Committees within three months of bill passage.
This language made reference to minimizing NSLs in ``light
of the purpose and technique of the particular surveillance.''
NSLs neither authorize nor acquire any surveillance,
electronic, physical or otherwise.
In addition to creating significant and ongoing
administrative review of every case in which an NSL is used
(while simultaneously limiting the scope of NSLs) in order to
identify any information received relating to a United States
person not believed to be an agent of a foreign power, it
requires deadlines for the destruction, minimization, or return
of that information, even if that information is relevant to or
necessary to understand foreign intelligence or a national
security investigation.
The manager's amendment modifies the minimization language
to delete the reference to NSLs as ``surveillance'' and removes
the requirement that certain information be destroyed. However,
it continues to impose unworkable, burdensome requirements on
the acquisition, retention and dissemination of NSL-obtained
information that will significantly curtail the use of NSLs in
counter-terrorism and intelligence investigations.
Conclusion
America is fortunate to not have suffered a terrorist
attack on our soil in over eight years. This good fortune was
not achieved by chance but by hard work, and we must not let
our safety become complacency. America is safe today not
because terrorists and spies have given up their mission to
destroy our freedoms and our way of life. America is safe today
because the men and women of the intelligence community use the
tools provided to them under the USA PATRIOT Act and other
intelligence laws to protect us. It would be irresponsible of
Congress to take away or weaken the authorities needed to their
job.
Despite corrections to certain provisions in this bill,
such as the standard for FISA business records and criminal and
FISA pen registers, H.R. 3845 still suffers from numerous
problems. The majority seeks to rewrite important foreign
intelligence laws under the guise of civil liberty protections
with no demonstrable evidence that such changes will, in fact,
accomplish this goal. What we do know is that these changes for
the sake of change risk diminishing or preventing the use of
intelligence-collection measures that have protected America
for eight years. We urge our colleagues to oppose this
legislation and support instead legislation that simply
reauthorizes the expiring provisions of current law, as
proposed by Republican members of this Committee and by the
Obama Administration.
Lamar Smith.
F. James Sensenbrenner, Jr.
Howard Coble.
Elton Gallegly.
Bob Goodlatte.
Daniel E. Lungren.
Darrell E. Issa.
J. Randy Forbes.
Steve King.
Trent Franks.
Louie Gohmert.
Jim Jordan.
Ted Poe.
Jason Chaffetz.
Tom Rooney.
Gregg Harper.
