Calendar No. 177
111th Congress Report
SENATE
1st Session 111-92
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THE USA PATRIOT ACT SUNSET EXTENSION ACT OF 2009
_______
October 28, 2009.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 1692]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 1692), to extend the sunset of certain provisions of
the USA PATRIOT Act and the authority to issue national
security letters, and for other purposes, having considered the
same, reports favorably thereon, with an amendment, and
recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Background and Purpose of The USA PATRIOT Act Sunset Extension Act
of 2009..........................................................1
II. History of the Bill and Committee Consideration..................3
III. Section-by-Section Summary of the Bill...........................7
IV. Congressional Budget Office Cost Estimate.......................10
V. Regulatory Impact Evaluation....................................11
VI. Conclusion......................................................11
VII. Additional and Minority Views...................................13
VIII.Changes to Existing Law Made by the Bill, as Reported...........33
I. Background and Purpose of the USA PATRIOT Act Sunset Extension Act
of 2009
Congress acted swiftly after the September 11, 2001,
attacks to pass the USA PATRIOT Act and to provide the
Government with the tools necessary to pursue terrorists and
others that would do harm to our country. In order to ensure
that the increased information-gathering powers of the
Government would be implemented appropriately, however,
Congress also included in the USA PATRIOT Act additional
oversight measures and sunsets on some of the surveillance
authorities with the greatest potential to impact U.S.
citizens.
During the 109th Congress, a number of the expiring
provisions of the USA PATRIOT Act were considered for
reauthorization. The majority of the provisions subject to a
sunset were made permanent. However, many Senators--including a
number on the Senate Committee on the Judiciary--expressed
continuing concerns with the broad scope of information-
gathering powers afforded the Government. These Senators sought
additional protections against possible infringements on the
constitutional rights and civil liberties of U.S. persons. In
particular, concerns were raised about sections 206 and 215 of
the USA PATRIOT Act, which authorized ``roving'' wiretaps and
orders for business records under the Foreign Surveillance
Intelligence Act (FISA). The ``lone wolf'' authority under FISA
was also viewed as controversial by some. Accordingly, the USA
PATRIOT Improvement and Reauthorization Act of 2005 included a
new sunset of December 31, 2009 for these three provisions. The
USA PATRIOT Improvement and Reauthorization Act of 2005 also
mandated that the Department of Justice, Office of Inspector
General complete comprehensive audits on the Government's use
of national security letters (NSLs) and requests for production
of business records under section 215 of the USA PATRIOT Act.
The sunset and auditing measures required by that law
proved that continuing congressional oversight and procedural
protections are vital to ensuring that the Government's powers
are exercised in a manner that is consistent with the
constitutional rights and civil liberties of Americans. In 2007
and 2008, the Department of Justice, Office of Inspector
General issued reports on the use of NSLs and requests for
section 215 orders for business records by the Federal Bureau
of Investigation, and found numerous instances of over-
collection of information. In reports on the use of NSLs, the
Inspector General cited faulty recordkeeping, poor tracking
systems, and both misuse and abuse of the NSL authority.
The USA PATRIOT Act Sunset Extension Act of 2009, S. 1692,
as amended and reported by the Committee, and as described more
fully below, strikes a reasonable balance between the
Government's need to maintain the tools necessary for effective
counterterrorism investigations with the civil liberties and
constitutional protections so important to all Americans. The
bill extends to December 31, 2013 the sunset on the three
expiring provisions: ``roving'' wiretaps, section 215 orders
for business records, and the ``lone wolf'' provision. It also
imposes a new four-year sunset on the use of NSLs. As set forth
more fully below, the bill also strengthens oversight and
judicial review, and addresses constitutional concerns about
NSL nondisclosure orders raised by the Court of Appeals for the
Second Circuit in the Doe v. Mukasey decision.
A September 14, 2009 letter to this Committee from the
Department of Justice acknowledged that: ``The oversight
provided since 2001 and the specific oversight provisions that
were added to the statute in 2006 have helped to ensure the
authority is being used as intended.'' S. 1692 as reported
expands oversight by mandating new audits by the Department of
Justice, Office of Inspector General, requiring new court-
approved minimization procedures on surveillance authorities,
and including more detailed public reporting on the use of
surveillance under FISA.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
The USA PATRIOT Act Sunset Extension Act of 2009 was
introduced as S. 1692 on September 22, 2009 by Senators Leahy,
Cardin, and Kaufman. Senator Sanders joined as a cosponsor on
September 25, 2009. Prior to the first executive business
meeting at which the bill was debated, Senator Leahy developed
a substitute amendment with Senator Feinstein. The substitute
was laid down as the pending amendment in an executive business
meeting on October 1, 2009. The substitute amendment was
cosponsored by Senators Leahy, Feinstein, Cardin, Kaufman,
Sanders, Whitehouse, and Klobuchar.
B. COMMITTEE CONSIDERATION
1. Hearing
The Committee held a hearing titled, ``Reauthorizing the
USA PATRIOT Act: Ensuring Liberty and Security,'' on September
23, 2009. During the first panel, testimony was received from
David Kris, Assistant Attorney General for the National
Security Division of the Department of Justice, and Glenn Fine,
the Inspector General of the Department of Justice.
Mr. Kris requested that the three expiring provisions of
the USA PATRIOT Act be reauthorized. The three provisions,
which are presently set to expire on December 31, 2009, are the
roving wiretap authority, the ``lone wolf'' surveillance
authority, and the provision authorizing orders for business
records and other tangible things. Mr. Kris stated that the
Department would be pleased to work with Congress as it
considered other changes to law, but presently was not able to
take a position on S. 1692. Mr. Kris' testimony reflected a
letter sent by Ronald Weich, Assistant Attorney General for
Legislative Affairs, to Chairman Leahy on September 14, 2009,
which is available upon request.
Mr. Fine's testimony summarized the findings of audits
conducted by the Office of the Inspector General on the use of
NSLs and orders for business records. These audits were
required by sections 119 and 106A of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Pub. L. No. 109-
177).
During the second panel, testimony was received from three
experts in national security law. Suzanne Spaulding, principal
of the Bingham Consulting Group, testified in favor of reforms
to the three expiring provisions of the USA PATRIOT Act.
Kenneth Wainstein, a partner at O'Melveny & Myers, stated that
the expiring provisions contained adequate safeguards and
should be reauthorized. Lisa Graves, executive director of the
Center for Media & Democracy, critiqued the use of orders for
business records and NSLs and recommended that higher standards
for issuance of such orders be enacted. Written testimony is
available at http:// judiciary.senate.gov/hearings/
hearing.cfm?id=4062.
Additional material was submitted by the Vermont Library
Association, the American Association of Law Libraries, the
Constitution Project, and the American Civil Liberties Union.
2. Executive business meetings
The bill was placed on the Committee's agenda for
consideration on September 24, 2009. It was held over on that
date.
On October 1, 2009, the Committee on the Judiciary
considered S. 1692 during an executive business meeting.
Chairman Leahy offered a manager's amendment, in the nature of
a complete substitute, which was adopted by unanimous consent
and subject to amendment. The substitute was cosponsored by
Senators Leahy, Feinstein, Cardin, Kaufman, Sanders,
Whitehouse, and Klobuchar.
The substitute amendment made a number of clarifying
changes and other modifications to S. 1692 as introduced.
First, the sunset on NSLs was modified such that rather than
fully expiring on December 31, 2013, the NSL authority would
revert to the standards in law prior to the enactment of the
2001 PATRIOT Act. The substitute strikes the renewable one-year
time limit on nondisclosure orders for NSLs to allow a
recipient of a nondisclosure order to challenge it in court at
any time. Under the substitute amendment, the court may set the
terms of nondisclosure as appropriate. The substitute ensures
that the FBI will prepare a written statement of facts showing
relevancy to an authorized investigation before an NSL can be
issued. It also clarifies that the statement will be retained
by the FBI, and not issued to the NSL recipient. It will be
available for internal review and audits by the Inspector
General.
The substitute amendment struck the three-part standard for
pen trap and trace orders, and for section 215 orders, except
in the case of library records.
The substitute amendment was adopted by unanimous consent.
Senators Feingold, Durbin and Specter each requested that they
be recorded as voting ``no.''
Senator Durbin offered an amendment to strike the standard
in S. 1692 for issuing a section 215 order for business records
and other tangible things and replace it with a three-part
standard. The amendment was rejected by a roll call vote.
The vote record is as follows:
Tally: 4 Yeas, 15 Nays
Yeas (4): Feingold (D-WI), Durbin (D-IL), Cardin (D-MD),
Specter (D-PA).
Nays (15): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-DE), Franken
(D-MN), Sessions (R-AL), Hatch (R-UT), Grassley (R-IA), Kyl (R-
AZ), Graham (R-SC), Cornyn (R-TX), Coburn (R-OK), Leahy (D-VT).
Senator Feingold offered an amendment to S. 1692 to modify
the presumptive time period for delayed notice search warrant
from 30 days, which is the period under current law, to seven
days. The amendment was accepted by a roll call vote.
The vote record is as follows:
Tally: 12 Yeas, 7 Nays
Yeas (12): Kohl (D-WI), Feinstein (D-CA), Feingold (D-WI),
Schumer (D-NY), Durbin (D-IL), Cardin (D-MD), Whitehouse (D-
RI), Klobuchar (D-MN), Kaufman (D-DE), Specter (D-PA), Franken
(D-MN), Leahy (D-VT).
Nays (7): Sessions (R-AL), Hatch (R-UT), Grassley (R-IA),
Kyl (R-AZ), Graham (R-SC), Cornyn (R-TX), Coburn (R-OK).
Senators Kyl and Schumer offered an amendment which would
have amended the criminal identity theft provisions in title 18
of the United States Code to make it a Federal crime to produce
or use a false travel document. The amendment was withdrawn by
Senator Kyl.
Senator Sessions offered a motion to strike the sunset
provision for NSLs from S. 1692. This motion was rejected by a
roll call vote.
The vote record is as follows:
Tally: 6 Yeas, 13 Nays
Yeas (6): Sessions (R-AL), Hatch (R-UT), Grassley (R-IA),
Kyl (R-AZ), Graham (R-SC), Cornyn (R-TX).
Nays (13): Kohl (D-WI), Feinstein (D-CA), Feingold (D-WI),
Schumer (D-NY), Durbin (D-IL), Cardin (D-MD), Whitehouse (D-
RI), Klobuchar (D-MN), Kaufman (D-DE), Specter (D-PA), Franken
(D-MN), Coburn (R-OK), Leahy (D-VT).
Senator Kyl offered an amendment which would have amended
the Classified Information Protection Act (CIPA) in a variety
of ways, including authorizing interlocutory appeals for any
order for access to classified information, allowing CIPA
requests to be made ex parte, and limiting the ability of the
court to decide when defense counsel may review classified
evidence. The amendment was withdrawn by Senator Kyl.
On October 8, 2009, the Committee on the Judiciary resumed
consideration of S. 1692.
Senator Sessions offered a package of amendments to S. 1692
that would make technical fixes and add clarifying language to
address concerns about the effectiveness and efficiency of
certain provisions. The amendments are as follows:
Senator Sessions offered an amendment to clarify that
minimization procedures for pen register and trap and trace
orders apply to information ``known to concern'' U.S. persons.
This modification clarifies that investigators are expected to
apply the required minimization protections based on their
knowledge at the time about the subject of an investigation.
Senator Sessions offered an amendment to provide that if
the conditions set forth for a nondisclosure order on NSLs are
met, judges shall issue the order.
Senator Sessions offered an amendment to limit the
Government's duty to notify NSL recipients when nondisclosure
orders are no longer required to those instances where a
recipient has previously challenged the order.
Senator Sessions offered a perfecting amendment that makes
the description of library records consistent with the language
used in current law under subsection (a) of Section 215 and
clarifies when library records are entitled to more deferential
review.
Senator Sessions offered an amendment that makes technical
fixes to minimization procedures for pen register and trap and
trace orders to clarify the intent of this provision.
The package of amendments offered by Senator Sessions was
adopted by voice vote.
Senator Durbin offered an amendment to require a three-part
standard for issuing NSLs. The amendment failed by a roll call
vote.
The vote record is as follows:
Tally: 4 Yeas, 15 Nays
Yeas (4): Feingold (D-WI), Durbin (D-IL), Cardin (D-MD),
Specter (D-PA).
Nays (15): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-DE), Franken
(D-MN), Sessions (R-AL), Hatch (R-UT), Grassley (R-IA), Kyl (R-
AZ), Graham (R-SC), Cornyn (R-TX), Coburn (R-OK), Leahy (D-VT).
Senator Kyl offered an amendment to strike the standard of
``appropriate weight'' that the court must give to the
Government's request for a nondisclosure order for NSLs and
instead require the court to afford the Government's request
for such a nondisclosure order ``substantial weight.'' This
amendment was adopted by a voice vote.
Senator Feingold offered an amendment to require the
Attorney General to issue minimization procedures for the use
of NSLs within 180 days of the enactment of the bill. The
amendment was agreed to by voice vote.
Senator Kyl offered an amendment to strike ``specific and
articulable facts'' from the written statement that the FBI or
other agency issuing an NSL must prepare to show that the
information it is requesting is relevant to its investigation.
The amendment was modified to only strike ``and articulable''
from the statement of facts. The amendment as modified was
agreed to by a roll call vote.
The vote record is as follows:
Tally: 14 Yeas, 4 Nays, 1 Pass
Yeas (14): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-DE), Franken
(D-MN), Sessions (R-AL), Grassley (R-IA), Kyl (R-AZ), Graham
(R-SC), Cornyn (R-TX), Coburn (R-OK), Leahy (D-VT) .
Nays (4): Feingold (D-WI), Durbin (D-IL), Cardin (D-MD),
Hatch (R-UT).
Pass (1): Specter (D-PA).
Senator Feingold offered an amendment to prevent the
Government from using the warrantless collection authorities of
the FISA Amendments Act to conduct ``bulk collection.'' Senator
Feingold withdrew the amendment.
Senator Feingold offered an amendment to allow the ``lone
wolf'' provision to expire on December 31, 2009. This amendment
failed on a roll call vote.
The vote record is as follows:
Tally: 3 Yeas, 16 Nays
Yeas (3): Feingold (D-WI), Durbin (D-IL), Specter (D-PA).
Nays (16): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Cardin (D-MD), Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-
DE), Franken (D-MN), Sessions (R-AL), Hatch (R-UT), Grassley
(R-IA), Kyl (R-AZ), Graham (R-SC), Cornyn (R-TX), Coburn (R-
OK), Leahy (D-VT).
The Committee then voted to report the USA PATRIOT Act
Sunset Extension Act, as amended, favorably to the Senate. The
Committee proceeded by roll call vote as follows:
Tally: 11 Yeas, 8 Nays
Yeas (11): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Cardin (D-MD), Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-
DE), Franken (D-MN), Kyl (R-AZ), Cornyn (R-TX), Leahy (D-VT).
Nays (8): Feingold (D-WI), Durbin (D-IL), Specter (D-PA),
Sessions (R-AL), Hatch (R-UT), Grassley (R-IA), Graham (R-SC),
Coburn (R-OK).
III. Section-by-Section Summary of the Bill
Section 1. Short title
This section provides that the legislation may be cited as
the ``USA PATRIOT Act Sunset Extension Act of 2009.''
Section 2. Sunsets
This section extends the sunsets on the provisions for
``lone wolf,'' roving wiretaps and orders for tangible things
from December 31, 2009 to December 31, 2013. This section
establishes a sunset of December 31, 2013, on the use of NSLs.
This section also makes conforming amendments to FISA and other
applicable laws consistent with the sunsets.
Section 3. Factual basis for and issuance of orders for access to
tangible things
This section modifies the standard for obtaining a court
order for tangible things under FISA. Current law requires the
Government to submit a statement of facts showing reasonable
grounds to believe that the tangible things sought are relevant
to an authorized investigation. However, current law states
that the tangible things sought are presumptively relevant if
the Government shows that they pertain to (a) a foreign power
or an agent 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. This section removes
the presumption of relevance described above. It requires the
Government to provide a statement of the facts and
circumstances relied upon by the applicant to justify the
applicant's belief that the tangible things sought are
relevant. This ensures that the Government is presenting a
thorough statement of facts to the court and strengthens
judicial oversight.
Section 3(a)(2)(A) alters certain requirements with respect
to applications made pursuant to 50 U.S.C. 1861. These changes
are not intended to affect or restrict any activities approved
by the FISA court under existing statutory authorities. Rather,
this provision is intended to ensure that in applications made
pursuant to 50 U.S.C. 1861, the government must submit a
statement of the facts it relies on to support its belief that
the items or information sought are relevant to an authorized
investigation and that such relevance is not to be presumed
based on the presence of certain factors.
To obtain library circulation records or patron lists, the
Government must meet a higher standard. That standard is a
statement of facts showing reasonable grounds to believe the
tangible things are relevant to an authorized investigation and
pertain to (a) an agent of a foreign power, (b) the activities
of a suspected agent, or (c) an individual in contact with or
known to a suspected agent of foreign power subject to the
investigation.
This section also requires court review of minimization
procedures.
Section 4. Factual basis for and issuance of orders for pen registers
and trap and trace devices for foreign intelligence purposes
Under current law, in order to obtain a FISA pen/trap, the
Government must certify that the information sought is merely
foreign intelligence information or is relevant to an
investigation to protect against terrorism. The bill modifies
the standard for obtaining a pen/trap to require the Government
to provide a statement of the 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.
Section 4(a)(2)(A) alters certain requirements with respect
to applications made pursuant to 50 U.S.C. 1842. These changes
are not intended to affect or restrict any activities approved
by the FISA court under existing statutory authorities. Rather,
this provision is intended to ensure that in applications made
pursuant to 50 U.S.C. 1842, the government must submit a
statement of the facts it relies on to support its belief that
the items or information sought are relevant to an authorized
investigation.
This section also requires minimization procedures, which
are not required under current law, and makes those procedures
subject to court review. Section 4(b) governs procedures for
minimization of the retention and dissemination of information
obtained pursuant to 50 U.S.C. 1842 where appropriate in
exceptional circumstances. This provision is intended to
provide a statutory footing for the existing practice whereby
specialized minimization procedures are implemented in certain
limited circumstances under FISA court authorization and
oversight.
Section 5. Limitations on disclosure of National Security Letters
This section authorizes the Government to prohibit
disclosure of the receipt of an NSL (there are four different
statutes that authorize NSLs) where a high level official
certifies that disclosure may result in danger to the national
security, interference with an investigation, or danger to the
life or safety of a person.
The recipient of an NSL nondisclosure order may challenge
the nondisclosure at any time by notifying the Government of a
desire to not comply. Section 6 (below) details the process for
doing so.
Section 6. Judicial review of FISA orders and NSL nondisclosure orders
This section allows the recipient of a section 215 order
for tangible things to challenge the order itself and any
nondisclosure order associated with it. Current law requires a
recipient to wait a year before challenging a nondisclosure
order. This section repeals that one-year mandated delay before
a recipient of an order for tangible things can challenge such
a nondisclosure order in court. It also repeals a provision
added to the law in 2006 stating that a conclusive presumption
in favor of the Government shall apply where a high level
official certifies that disclosure of the order for tangible
things would endanger national security or interfere with
diplomatic relations.
This section also corrects the constitutional defects in
the issuance of nondisclosure orders on NSLs as found by the
Second Circuit Court of Appeals in Doe v. Mukasey, 07-4943-cv
(December 15, 2008), and adopts the concepts suggested by that
court for a constitutionally sound process. Id. at pp. 39-40.
The bill allows the recipient of an NSL with a nondisclosure
order to notify the Government at any time that it wishes to
challenge the nondisclosure order. The Government then has 30
days to seek a court order in federal district court to compel
compliance with the nondisclosure order. The court has
authority to set the terms of a nondisclosure order as
appropriate to the circumstances, but must afford substantial
weight to the Government's argument in favor of nondisclosure.
The Government must notify any entity that challenges a
nondisclosure order when the need for nondisclosure is
terminated.
The bill requires FISA court approval of minimization
procedures, similar to the court approval required for other
FISA authorities such as wiretaps, physical searches, and pen
register and trap and trace devices.
Section 7. Certification for access to telephone toll and transactional
records
This section codifies current FBI practice in issuing an
NSL, and augments oversight and transparency. Current law
requires only that an official certify that the information
requested in the NSL is relevant to, or sought for, an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, or for a law
enforcement investigation, counterintelligence inquiry, or
security determination. This section adds a requirement that
the FBI retain a statement of specific facts showing that the
information sought is relevant to such an authorized
investigation. This statement of specific facts will not be
included in the NSL itself, but will be available for internal
review and Office of Inspector General audits.
Section 8. Public reporting on National Security Letters
This section requires annual public reporting on the number
of requests for NSLs. and greater specificity of the types of
persons targeted (e.g., U.S. persons v. non-U.S. persons).
Section 9. Public reporting on the Foreign Intelligence Surveillance
Act
This section requires annual public reporting of aggregate
numbers of requests for surveillance that also includes a
breakdown of requests for (a) electronic surveillance, (b)
physical searches, (c) orders for tangible things (section 215
orders), and (d) pen registers. Current law requires only
public reporting of the above categories in the aggregate.
Section 10. Audits
This section requires the DOJ Office of Inspector General
to conduct audits of the use of three surveillance tools: (1)
orders for tangible things under section 215 of the 2001
PATRIOT Act, or section 501 of FISA; (2) pen registers and trap
and trace devices under section 402 of FISA; and (3) the use of
NSLs. The audits will cover the years 2007 through 2011. The
scope of such audits includes a comprehensive analysis of the
effectiveness and use of the investigative authorities provided
to the Government, including any improper or illegal use of
such authorities.
Section 11. Delayed notice search warrants
Current law requires notification of a delayed notice
search warrant within 30 days. This section requires
notification of a delayed notice search warrant within seven
days, or a longer period if justified. In reducing the initial
period of delayed notice from 30 to 7 days, the Committee does
not intend to suggest that it would be improper for courts to
continue to grant extensions of up to 90 days, where
appropriate, as they do at present.
Section 12. NSL minimization procedures
Current law does not require minimization procedures be
established, but the Department was required by law to conduct
a feasibility study on the matter. The Office of Inspector
General's audits on NSLs, which found past misuse and abuse of
the NSL authority, called for minimization procedures to be
established. This section requires that the Attorney General,
within 180 days of enactment, establish minimization and
destruction procedures governing acquisition, retention, and
dissemination by the FBI of any records received by the FBI in
response to an NSL.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S.
1692, the following estimate and comparison prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act of 1974:
October 23, 2009.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1692, the USA
PATRIOT Act Sunset Extension 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.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 1692--USA PATRIOT Act Sunset Extension Act of 2009
CBO estimates 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. 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 S. 1692 are
either excluded from review for mandates under the Unfunded
Mandates Reform Act because they are necessary for national
security or contain no intergovernmental or private-sector
mandates.
The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT) Act of 2001 (Public Law 107-56), the Intelligence
Reform and Terrorism Prevention Act of 2004 (Public Law 108-
458), 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. S. 1692 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.
S. 1692 would require the DOJ Inspector General, by
December 31, 2012, to conduct audits of the department's use of
certain investigative powers during the 2007-2011 period. Based
on information from DOJ, we expect that the department would
need to hire about 10 people to carry out the audits. CBO
estimates that it would cost about $1 million in fiscal year
2010, about $2 million annually over the 2011-2012 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 S. 1692 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.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Peter H. Fontaine, Assistant
Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that under S. 1692, as reported,
the Department of Justice would be required to issue
minimization procedures on NSLs, section 215 orders, and pen
register and trap and trace devices.
VI. Conclusion
The USA PATRIOT Act Sunset Extension Act of 2009, S. 1692,
was reported favorably to the Senate with a bipartisan vote
from the Committee on the Judiciary. The bill provides the
Government with important tools to prevent terrorist attacks,
while increasing protections of civil liberties, and affording
greater respect for constitutional rights than under current
law. The bill contains vigorous oversight and public reporting
requirements, new Inspector General audits, and sunsets on four
controversial provisions. Because three provisions of the USA
PATRIOT Improvement and Reauthorization Act of 2005 are due to
expire on December 31, 2009, the Committee recommends swift
action on S. 1692 as reported.
VII. Additional and Minority Views
----------
ADDITIONAL VIEWS FROM SENATORS SESSIONS, HATCH, GRASSLEY, KYL, GRAHAM,
CORNYN, AND COBURN
On September 23, 2009, the Senate Judiciary Committee held
a hearing entitled, ``Reauthorizing the USA PATRIOT Act:
Ensuring Liberty and Security,'' at which David Kris, the
Assistant Attorney General for the National Security Division,
testified about the importance of the authorities contained in
the USA PATRIOT Improvement and Reauthorization Act of 2005.
Underscoring Mr. Kris's testimony, the Department of Justice
indicted terror suspect Najibullah Zazi just one day after the
Committee's hearing\1\ for his role in what Attorney General
Eric Holder has called ``one of the most serious terrorist
threats to our country since September 11, 2001.''\2\
---------------------------------------------------------------------------
\1\Press Release, Office of Public Affairs, Department of Justice,
Najibullah Zazi Indicted for Conspiracy (Sept. 24, 2009), available at
http://www.justice.gov/opa/pr/2009/September/09-ag-1017.html
(hereinafter ``Press Release'').
\2\``Holder: NYC Terror Plot Most Serious Since 9/11,'' Newsday,
Oct. 6, 2009, available
at http://www.newsday.com/news/new-york/holder-nyc-terror-plot-most-
serious-since-9-11-1.1505916.
---------------------------------------------------------------------------
According to the official Department of Justice press
release accompanying the indictment, Mr. Zazi ``knowingly and
intentionally conspired with others to use one or more weapons
of mass destruction, specifically explosive devices, against
persons or property within the United States.''\3\ The New York
Times described the government's case against Mr. Zazi as ``a
set of damning accusations'' that begin ``with explosives
training in Pakistan, followed by purchases of bomb-making
materials in Colorado, experiments in a hotel room, and a
cross-country trip to New York, which the authorities feared
might have been the target of the attack.''\4\ The facts
surrounding this terrorist plot become even more alarming in
light of reports that Mr. Zazi was in contact with senior al
Qaeda operatives, including Mustafa Abu al-Yazid, the leader of
al Qaeda in Afghanistan.\5\
---------------------------------------------------------------------------
\3\Press Release, supra n. 1.
\4\David Johnston and William K. Rashbaum, ``Rush for Clues Before
Charges in Terror Case,'' N.Y. Times, Oct. 1, 2009.
\5\``Zazi Linked to Al Qaeda's Afghan Head,'' CBS News, Oct. 14,
2009, available at http://www/cbsnews.com/stories/2009/10/14/national/
main5384355.shtml.
---------------------------------------------------------------------------
As the Zazi case makes clear, the terrorist threat is not
abating. If anything, today's terrorist organizations are more
sophisticated, more determined and more aware of our efforts to
combat their tactics than ever before. As President Obama said
earlier this month in his October 20 address to the New York
Joint Terrorism Task Force: ``We all know that we are facing a
determined adversary. . . . They are resourceful, they are
resilient, they are still plotting, as we have become all too
aware.'' Now is not the time to risk weakening the legal
authorities that our national security professionals rely upon
every day to detect and prevent attacks.
PATRIOT Act and FISA authorities have been vital to our
counterterrorism efforts in recent years. For example, PATRIOT
Act tools appear to have contributed to last month's arrest of
Mr. Zazi.\6\ PATRIOT Act authorities also reportedly played a
role in thwarting the terrorist plot uncovered earlier this
year in New York, in which four former convicts who converted
to radical Islam plotted to use explosives to blow up
synagogues and shoot down an airplane with a surface-to-air
missile at an Air National Guard base.\7\
---------------------------------------------------------------------------
\6\``Notice of Intent To Use Foreign Intelligence Surveillance Act
Information,'' United States v. Najibullah Zazi, U.S. District Court
for the District of Colorado, Docket No. 09-cr-03001-CBS, September 21,
2009.
\7\Cristina Corbin, ``Patriot Act Likely Helped Thwart NYC Terror
Plot, Security Experts Say,'' FOX News, May 21, 2009, available at
http://www.foxnews.com/politics/2009/05/21/ security-experts-say-
patriot-act-likely-helped-thwart-nyc-terror-plot/.
---------------------------------------------------------------------------
These are not new developments. Over the last eight years,
law enforcement officials have given the PATRIOT Act credit for
cracking major terrorism cases and preventing attacks
throughout the country, including in California, New York,
Texas, Ohio, and Virginia.
THE THREE EXPIRING PROVISIONS
The PATRIOT Act has provided our national security
investigators and analysts with critical legal authorities they
need to protect the nation against terrorist threats. Although
these legal tools were most recently renewed as part of the
PATRIOT Act reauthorization in 2005 and 2006, three critical
important provisions of the PATRIOT Act will, without further
legislative action, no longer be available after December 31,
2009. These provisions are:
The ``roving wiretap'' provision, Section
206 of the USA PATRIOT Act. This tool allows
investigators to follow sophisticated terrorists who
are trained to evade detection (for example, by rapidly
changing cell phone numbers). This authority protects
agents from having to file repetitious court
applications to continue an investigation every time a
terrorist changes phones. Roving wiretaps have been
routinely used in domestic law enforcement for decades.
The ``business records'' authority, Section
215 of the USA PATRIOT Act. This authority allows
officials to ask a court for an order to obtain
business records in national security terrorism cases.
Examining business records often provides key
information that assists investigators in solving a
wide range of crimes.
The ``lone wolf'' authority, Section 6001 of
the Intelligence Reform and Terrorism Prevention Act.
This authority allows intelligence investigations of
terrorists who are not connected to a foreign nation or
organization. Before 2004, national security officials
had to show a court that a target was an agent of a
foreign power, or acting on behalf of a foreign power,
in order to get permission to monitor him. This was a
problem in the case of Zacharias Moussaoui (the 20th
hijacker in the 9/11 attacks), when agents did not get
a search warrant for his computer because they believed
that they could not show that he was an agent of a
foreign power.
A broad bipartisan group of 89 Senators--including then-
Senators Obama and Biden--supported these tools when they voted
in favor of the PATRIOT Act reauthorization legislation in
2006. The Department of Justice strongly supports the renewal
of all three of these measures. In addition to writing to
Senator Leahy in detail regarding why each of these authorities
is critical, both David Kris,\8\ the Assistant Attorney General
for the National Security Division, and FBI Director Robert
Mueller\9\ have testified before the Judiciary Committee in
support of renewing the expiring authorities.
---------------------------------------------------------------------------
\8\See ``Statement of David Kris,'' before the Committee on the
Judiciary, United States Senate, Sept. 23, 2009, available at http://
judiciary.senate.gov/pdf/09-09-23%20Kris%20Testimony.pdf.
\9\Carie Johnson, ``FBI Chief Urges Renewal of Patriot Act,''
Washington Post, Mar. 26,
2009, available at http://www.washingtonpost.com/wp-dyn/content/
article/2009/03/25/AR2009032501862.html (calling provisions
``exceptional tools to promote national security'').
---------------------------------------------------------------------------
All three of these tools have helped protect the nation
from terrorist threats and provide our investigators and
analysts with critical information. In order to continue to
protect the nation, this Committee's highest priority should be
to renew these tools. All other issues and controversies should
be put aside and considered as part of other legislation. As
some of us have stated previously, we prefer a simple, four-
year renewal of these three authorities. There is no need to
tie other matters, such as changes to the use of national
security letters (``NSLs''), to renewal of these important
provisions.
We appreciate and are encouraged by this Committee's
bipartisan commitment in S. 1692 to reauthorize these three
authorities until 2013. Due in large part to amendments several
of us offered during the Committee's consideration of this
measure, we are also encouraged that the Committee-approved
version of S. 1692 was considerably improved over the previous
versions circulated. Unfortunately, we remain concerned that
portions of this bill will substantially weaken the
Government's ability to protect the nation against terrorism
and other national security threats.
OUR AMENDMENTS TO IMPROVE S. 1692
As part of the Committee's consideration of S. 1692,
Senators Sessions and Kyl offered, and the Committee accepted,
seven amendments to address deficiencies in the legislation.
First, the Committee adopted an amendment offered by
Senator Sessions that makes clear that a restriction on the
distribution of non-public information obtained from pen
registers only applies to information known to concern U.S.
persons. Before this amendment was adopted, S. 1692 provided
that minimization procedures would ``prohibit the dissemination
of non-publicly available information concerning unconsenting
United States persons.'' This language was problematic from an
operational perspective, as investigators frequently do not
know at an early stage of an investigation whether the
telephone numbers they are looking at belong to U.S. persons or
others. The prior language would have required agents to take a
closer look at each number dialed to determine whether or not
that number belongs to a U.S. person, simply to comply with the
procedures. This would have introduced a new privacy concern
where one did not previously exist. This amendment makes clear
that the prohibition only applies to those unconsenting U.S.
persons that are known.
Second, Senator Sessions offered an amendment adopted by
the Committee to require courts to issue a NSL nondisclosure
order if the government meets the required burden. Before this
amendment was adopted, if the government met the statutory
burden, the bill stated only that ``the court may issue a
nondisclosure order . . . .'' (emphasis added). In other words,
even if the government established that disclosure would result
in ``a danger to the national security of the United States,''
a court could still refuse to enforce the nondisclosure
requirement. This was problematic from an operational
perspective. Judges should not have the unfettered discretion
to refuse to issue nondisclosure orders once the government has
met its burden. If the government has shown that nondisclosure
is needed, the order should issue.
Third, the Committee adopted an amendment offered by
Senator Sessions that clarifies whom the government must notify
regarding the termination of an NSL nondisclosure requirement.
Previously, the bill required the FBI to monitor when ``the
facts supporting a nondisclosure requirement cease to exist''
and notify the recipient that ``the nondisclosure requirement
is no longer in effect.'' This requirement would have been an
operational impossibility for the FBI, as it issues thousands
of NSLs every year. Requiring the FBI to look back on both
active and cold investigations to keep tabs in every case on
when nondisclosure is no longer warranted will be a logistical
nightmare and could lead to compliance problems. This amendment
altered this requirement by making notification necessary only
to those entities that had already notified the government that
they wished to have a court review the nondisclosure
requirement.
Fourth, Senator Sessions offered an amendment adopted by
the Committee that changes the types of records that qualify
for the new and heightened ``library records'' provisions
contained in S. 1692. Under the previous language, this higher
standard applied if the records sought ``pertain[] to''
libraries. This language was problematic. A court could
interpret the ``pertains to'' language very broadly, making the
job of national security investigators much more difficult. For
example, a telephone company complying with a Section 215 order
might believe it has to spend countless hours combing through
phone records to see if they include the number of a library.
Similarly, banks might have to do the same to see if bank
records contain credit card payments for library fines. This
amendment applies the heightened library standard only where
``the records sought are the circulation records or patron
lists of a library.'' It is our understanding that this
language is supported by the Administration.
Fifth, the Committee adopted another amendment offered by
Senator Sessions to address the new minimization requirements
for pen registers. Under current law, there are no minimization
requirements for either criminal law or FISA pen registers.
This is logical, since pen registers by definition do not
capture content. Instead, they simply gather raw telephone data
(for example, a list of numbers) that are building blocks of an
investigation. Before this amendment was adopted, S. 1692
imposed minimization requirements on pen registers. These
requirements would have led to considerable operational
confusion, as both the FISA Court and agents would have
struggled to apply minimization procedures, designed to protect
U.S. person information, to data that is not readily
identifiable as being U.S. person information. It makes sense
to instead limit these minimization requirements to those cases
where judges feel privacy interests are particularly at play.
This amendment removes the mandate that minimization take place
in the pen register context and instead gives courts the
discretion to impose minimization requirements in exceptional
circumstances. It is our understanding that this language is
supported by the Administration.
Sixth, Senator Kyl offered an amendment adopted by the
Committee that addresses that standard of deference a court
will give to a determination by national security officials
that the disclosure of an NSL would present a danger to
national security. Under existing law, such a certification is
given ``conclusive'' effect, absent a showing of bad faith by
the certifying official. In Doe v. Mukasey,\10\ the U.S. Court
of Appeals for the Second Circuit held that this standard was
too deferential, as ``some demonstration from the Executive
Branch of the need for secrecy is required in order to conform
the nondisclosure requirement to First Amendment standards.''
However, S. 1692 went way beyond what Doe requires, as it would
give the certification of national security danger only
``appropriate weight.'' This language was problematic for a
variety of reasons, including the fact that ``appropriate
weight'' is a standard alien to national security
jurisprudence, and is seemingly malleable to the whims of the
particular federal judge handling any one case. This amendment
substitutes an oft-used, familiar standard by requiring a court
to give ``substantial weight'' to a government certification
that the disclosure of an NSL would present a danger to
national security. It is our understanding that this language
is supported by the Administration.
---------------------------------------------------------------------------
\10\549 F.3d 861, 882 (2nd Cir. 2008).
---------------------------------------------------------------------------
Seventh, the Committee adopted an amendment offered by
Senator Kyl that addresses a provision of the bill that
requires the FBI to maintain a ``written statement'' for every
NSL issued. As the bill was drafted, the statement would need
to contain ``specific and articulable facts'' that justify the
need for the NSL. Although this sounds like mere recordkeeping,
the ``specific and articulable facts'' language could have
caused operational problems. Currently, NSLs are available for
use in what are defined as ``preliminary investigations'' under
FBI Guidelines. The problem is that the ``specific and
articulable facts'' language resembles the standard the FBI
Guidelines require for a later, more-developed stage in an
investigation, i.e., what it deems a ``full investigation.''
This language was amended to make clear that NSLs are still
available at the ``preliminary investigation'' stage of a
national security investigation by the FBI. This amendment, as
orally amended in markup, kept the requirement for the
``written statement'' and also kept the substitute bill's
requirement that such a statement have a basis in ``specific
facts.'' However, this amendment drops the words ``and
articulable'' in order to avoid giving the impression that
Congress was changing the FBI's owns standards for when NSLs
can be used.
SPECIFIC DEFICIENCIES IN S. 1692
Although these and other amendments improve S. 1692, we
continue to have reservations regarding this bill. In
particular, we are concerned that by placing a four-year sunset
and new and burdensome minimization requirements on NSLs, as
well as unnecessary burdens on business record requests and
delayed notice search warrants, this legislation will make it
more difficult for investigators and analysts to obtain the
information they need to make the necessary decisions to
protect the country. Although we have concerns with other parts
of this legislation, we will focus on these particular
deficiencies.
Imposing new ``minimization'' procedures on NSLs
Section 12 of S. 1692 requires the Attorney General to
issue minimization procedures for NSLs within 180 days of
enactment of this legislation. At the time the Committee
adopted this provision via amendment, Members believed the
minimization procedures were already being considered and
implemented within the Department of Justice. As the amendment
sponsor stated during the markup prior to the Committee's vote:
``What I said was I know of nobody saying we should not do
this. They are working on it. We are telling them to get it
done in a timely manner.''\11\ In recent days, however,
administration officials from the Department of Justice and
Federal Bureau of Investigations advised Committee staff that
the procedures the Department is currently drafting for NSLs
differ significantly from the minimization procedures required
by Section 12. Accordingly, the Committee's adoption of Section
12 appears to be based on a misunderstanding.
---------------------------------------------------------------------------
\11\See Transcript of Executive Business Meeting at 71, Committee
on the Judiciary, United States Senate, Oct. 8, 2009, available at
http://www.senate.gov/fplayers/CommPlayer/
commFlashPlayer.cfm?fn=judiciary100809&st=xxx (min. 117:56 to 118:03).
---------------------------------------------------------------------------
Current law already imposes significant burdens on the
government in its efforts to obtain records pursuant to NSLs in
national security and terrorism cases. As noted previously,
NSLs give national security agencies some of the powers dozens
of domestic agencies already possess in areas far less critical
than national security. Indeed, a 2002 study conducted by the
Department of Justice Office of Legal Policy ``identified
approximately 335 administrative subpoena authorities existing
in current law,'' including for agencies ranging from the
Appalachian Regional Commission to the Commodities Future
Trading Commission and Environmental Protection Agency.\12\
---------------------------------------------------------------------------
\12\U.S. Department of Justice Office of Legal Policy, Report to
Congress on the Use of Administrative Subpoena Authorities by Executive
Branch Agencies and Entities, May 2002, available at http://
www.justice.gov/archive/olp/rpt_to_congress.htm. See also Testimony of
Rachel Brand, Principal Deputy Assistant Attorney General, Office of
Legal Policy, before the United States Senate Judiciary Committee,
Subcommittee on Terrorism, Technology and Homeland Security, June 22,
2004.
---------------------------------------------------------------------------
NSLs are already more difficult to obtain than normal
subpoenas. Unlike administrative subpoenas, NSLs have to be
approved by a senior FBI official. Several layers of oversight
are also built into the system to prevent abuse. For example,
NSL use is monitored and reviewed by the FBI's Office of
General Counsel, and by the National Security Law Branch of the
Justice Department. This assures that there is scrutiny of
field office use and headquarters oversight of the use of NSLs.
In addition, the type of information that can be obtained with
an NSL is limited by law to specific areas, such as telephone
subscriber information or employment location.
Minimization requirements should not be applied to early-
stage investigative tools such as NSLs because these types of
process generally do not result in the collection of the
contents of communications. Further, investigators often do not
know whether the information they have obtained is even
relevant to their investigation. For example, if an agent
obtained a list of phone numbers, that agent would have no idea
whether the obtained numbers belonged to U.S. persons or
others. Minimization could require investigators to take a
closer look at each number obtained to determine whether or not
that number belonged to a U.S. person, simply to comply with
the procedures. This would introduce a new privacy concern
where one did not previously exist.
Although minimization requirements were imposed on Section
215 orders in 2005, the Department of Justice only issued
thirteen requests for such orders as recently as 2008.\13\ By
contrast, many more NSLs concerning U.S. persons were issued
last year.\14\ We have learned in recent days that the
imposition of minimization procedures on this broadly used and
important national security tool would have a devastating
impact on national security investigations, contrary to the
understanding of Members at the markup of S. 1692.\15\ Current
reporting requirements, along with zealous Inspector General
oversight, are sufficient to ensure that NSLs are being used
appropriately. Requiring the Justice Department to formulate
and issue NSL minimization procedures within 180 days will
cause serious operational difficulties for national security
investigators, particularly in light of all the questions that
will be raised as to the implementation of the procedures.
---------------------------------------------------------------------------
\13\See ``FISA Report to Congress: 2008,'' U.S. Dept. of Justice,
Office of Legislative Affairs, May 14, 2009, at *4 available at http://
www.fas.org/irp/agency/doj/fisa/2008rept.pdf.
\14\See id.
\15\See Transcript of Executive Business Meeting at 70-71,
Committee on the Judiciary, United States Senate, Oct. 8, 2009,
available at http://www.senate.gov/fplayers/CommPlayer/
commFlashPlayer.cfm?fn=judiciary100809&st=xxx (min. 117:12 to 117:29)
(Sen. Russ Feingold states, ``I do not know of anybody over there that
is saying we should not do this. They are working on it. They think we
ought to do it. The FBI thinks we ought to do it. The Attorney General
thinks you ought to do it. They just have not gotten it done. We are
just telling them to get it done. So the notion that somehow this is
some terrible idea flies in the face of the very people you are often
quoting as saying this.'').
---------------------------------------------------------------------------
Dramatic Shortening of Period for Delayed Notice Search Warrants
We are also concerned about Section 3 of S. 1692, which
would considerably shorten the notification period for delayed
notice search warrants from thirty days to a mere seven days--
less than a quarter of the time allowed under current law.
Reducing the time period for delay of search warrant
notification arbitrarily places disclosure risks into the most
secret actions a government can engage. The new disclosure
requirements, if adopted, will force investigators to return to
the issuing judge less than a week after they first received
the warrant. Investigators should be spending their time
bringing offenders to justice, not at the courthouse deluging
courts with unnecessary paperwork.
We are concerned that debate during the Committee's markup
centered on two cases to the exclusion of other case law on
this issue. In fact, the two cases cited in support of this
provision predate the original PATRIOT Act by more than a
decade. In United States v. Freitas,\16\ the U.S. Court of
Appeals for the Ninth Circuit set as a standard that notice
must be given within ``a reasonable, but short, time'' and
ruled that that period could not exceed seven days absent ``a
strong showing of necessity.'' Four years later, the Second
Circuit reached a similar conclusion but articulated a
different standard. In United States v. Villegas,\17\ the court
held that delay is permissible if investigators show there is
``good reason'' for the delay. The U.S. Court of Appeals for
the Second Circuit agreed with the Ninth Circuit that the
initial delay should not exceed seven days but allowed for
further delays if each is justified by ``a fresh showing of the
need for further delay.''
---------------------------------------------------------------------------
\16\800 F.2d 1451 (9th Cir. 1986).
\17\899 F.2d 1324 (2d Cir. 1990).
---------------------------------------------------------------------------
We believe these two cases are outliers. In other
jurisdictions, courts imposed longer delay periods, if time
limits were set at all.\18\ The whole point of section 213 of
the PATRIOT Act (as refined in 2006) was to create a middle-
ground, nationwide standard for delayed notice search warrants.
There is simply no basis to go back to the time limit that
existed in a handful of courts prior to the enactment of the
PATRIOT Act. Furthermore, there is no need to change the law to
abridge the time allowed for delayed notification. No federal
court has overturned a post-PATRIOT Act search on the ground
that the delayed notice standard in section 213 (codified at 18
U.S.C. 3103a(b)(3)) is unconstitutional under the Fourth
Amendment.
---------------------------------------------------------------------------
\18\See, e.g., United States v. Simons, 206 F.3d 392 (4th Cir.
2000) (45-day delay constitutional); United States v. Hernandez, 07-
60027-CR, 2007 WL 2915856 (S.D. Fla. Oct. 4, 2007) (unpublished)
(noting there is no similar time limit [to that in Villegas] suggested
or required in [the 11th] Circuit.'').
---------------------------------------------------------------------------
Sunset on National Security Letters
Section 2 of S. 1692 places a new and unnecessary four-year
sunset on the PATRIOT Act amendments made to the national
security letter statutes. According to Section 2 of S. 1692, on
December 31, 2013, NSLs may only be issued pursuant to the
considerably more rigorous standard that existed before the
enactment of the PATRIOT Act. As a practical matter, this
sunset will virtually eliminate the use of NSLs.
NSLs are a valuable tool and have provided investigators
and analysts with critical information.\19\ Although details on
NSL use are classified, the Justice Department has reported
that ``information obtained through NSLs has significantly
advanced numerous sensitive terrorism and espionage
investigations and has assisted the FBI in discovering links to
previously unknown terrorist operatives.''\20\ In its March
2007 report on NSLs, the Department of Justice Inspector
General noted that ``[m]any FBI personnel used terms to
describe NSLs such as `indispensable' or our bread and
butter.''\21\ As Valerie Caproni, General Counsel of the FBI,
explained in 2007, ``NSLs have been instrumental in breaking up
cells like the `Lackawanna Six' and the `Northern Virginia
Jihad.' Through the use of NSLs, the FBI has traced sources of
terrorist funding, established telephone linkages that resulted
in further investigation and arrests, and arrested suspicious
associates with deadly weapons and explosives. NSLs allow the
FBI to link terrorists together financially, and pinpoint cells
and operatives by following the money.''\22\
---------------------------------------------------------------------------
\19\See e.g. ``FBI Press Conference on DOJ Inspector General's
Report of Use of National Security Letters,'' FBI, March 9, 2007,
available at http://www.fbi.gov/pressrel/pressrel07/
nsl_transcript030907.htm (stating ``national security letters are a
critical tool and are the bread and butter of our investigations.'').
\20\See ``Statement of Matthew Berry,'' Counselor to the Assistant
Attorney General, Office of Legal Policy, U.S. Dept. of Justice, before
the House Subcommittee on Crime, Terrorism, and Homeland Security, May
26, 2005, at *5, available at http://www.usdoj.gov/olp/pdf/
usa_patriot_act_reauthorization_matthew_berry_testimony.pdf.
\21\See ``A Review of the Federal Bureau of Investigation's Use of
National Security Letters,'' U.S. Dept. of Justice, Office of Inspector
General, March 2007, at xxii, available at http://www.usdoj.gov/oig/
special/s0703b/final.pdf.
\22\See ``Statement of Valerie Caproni Before the House Committee
on the Judiciary,'' March 20, 2007, available at http://www.fbi.gov/
congress/congress07/caproni032007.htm.
---------------------------------------------------------------------------
Section 2 of S. 1692 rescinds these valuable tools by,
starting in 2013, requiring the government to follow the
cumbersome pre-
PATRIOT Act NSL standard. Prior to the PATRIOT Act, not only
did the requested records have to be relevant to an
investigation, but the FBI also had to have specific and
articulable facts giving reason to believe that the information
requested pertained to a foreign power or an agent of a foreign
power, such as a terrorist or spy. This pre-PATRIOT Act
requirement kept the FBI from using NSLs to develop evidence at
the early stages of an investigation, which is precisely when
they are the most useful, and often prevented investigators
from acquiring records that were relevant to an ongoing
international terrorism or espionage investigation.
In 2005, Matthew Berry, Counselor to the Assistant Attorney
General for the Office of Legal Policy, provided this example
of the problems caused by the old standard:
Let's say that post-2001 and this has happened--you
capture a terrorist, and on the terrorist's computer
you have a series of phone numbers. Any investigator
worth his or her salt would want to take those phone
numbers and figure out the subscriber information,
whose phone numbers they are, and in many cases toll
billing records, . . . what numbers have been calling
that phone number and what numbers has that phone
number been calling. . . . Prior to the PATRIOT Act we
couldn't use NSLs to obtain that information because we
had no idea whatsoever whose phone numbers they were.
They could be a terrorist associate's phone numbers.
They could be the drycleaner's phone numbers. We needed
the basic information to forward the investigation. We
couldn't use it for that purpose.''\23\
---------------------------------------------------------------------------
\23\Testimony of Matthew Berry (Oral), Counselor to the Assistant
Attorney General, Office of Legal Policy, U.S. Department of Justice,
before the House Subcommittee on Crime, Terrorism, and Homeland
Security, May 26, 2005.
Mr. Berry further explained the benefit of the PATRIOT Act
amendments to the NSL statutes: ``Now, because the standard is
relevance, the same standard that we have in criminal
investigations with grand jury subpoenas, we can obtain that
information. And I can report . . . that such uses of the NSLs
have been very valuable to the Department and have allowed us
to identify terrorist operatives that we previously did not
know about. So I think that it would be a major, major mistake
to return back to the prior standard.''\24\
---------------------------------------------------------------------------
\24\Id.
---------------------------------------------------------------------------
It makes little sense to roll back the sensible NSL reforms
that were made as part of the USA PATRIOT Act. Criminal
investigators have long been able to use grand jury subpoenas
to obtain records so long as they are relevant to their
investigation. Under Section 505 of the PATRIOT Act, the FBI
can use NSLs to obtain specified records so long as they 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 of the Constitution of the United States.''
This standard ensures that NSLs may not be used for
improper purposes. Although some deficiencies were found by the
Department of Justice Inspector General concerning the FBI's
handling of NSLs, the Department of Justice has responded to
these improper practices and is taking action to ensure that
they are not repeated. For example, the use of so-called
``exigent letters'' has been forbidden. In its March 2008
report on NSLs, the Inspector General stated that ``the FBI and
the Department have made significant progress in implementing
the recommendations from [a prior Inspector General] report and
in adopting other corrective actions to address serious
problems we identified in the use of national security
letters.''\25\ What is puzzling is that the supposed remedy in
S. 1692--a sunset of the NSL standard to what it was before
September 11, 2001--generally has no relationship whatsoever to
the deficiencies related to NSLs found by the Inspector
General.
---------------------------------------------------------------------------
\25\See ``A Review of the Federal Bureau of Investigation's Use of
National Security Letters: Assessment of Corrective Actions and
Examination of NSL Usage in 2006,'' U.S. Dept. of Justice, Office of
Inspector General, March 2008, at 15, available at http://
www.usdoj.gov/oig/special/s0803b/final.pdf.
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Business and library records
Although we are pleased with some of the modifications
adopted by the Committee to Section 3 of S. 1692 to remedy
potential operational concerns, we remain concerned that
Section 3 continues to place too high a burden on the
government's ability to obtain business records. Current law
already imposes significant burdens on the efforts of
investigators to obtain business records in national security
and terrorism cases. For example, under current law, the
government must submit a statement of facts showing reasonable
grounds to believe that the business records sought are
relevant to an authorized investigation. Under the current
system, records are presumptively relevant if the government
meets certain requirements. Unfortunately, S. 1692 removes that
presumption and instead requires investigators to tell the
court the reasons why the records are relevant. It is not
necessary to make investigators spend their time doing this
when they are dealing with agents of foreign powers, as opposed
to uninvolved U.S. persons.
Additionally, Section 3 provides unnecessary and curious
protections for library records. If a library is involved, S.
1692 requires the government to prove to the court that the
business records sought pertain to a foreign power or an agent
of a foreign power. If investigators cannot make this showing,
they cannot use the records, even if they could otherwise
satisfy a court that there were reasonable grounds to believe
that the business records sought were relevant to an authorized
investigation.
S. 1692 suggests that national security investigators have
some sort of curious interest in the library habits of ordinary
Americans. There is simply no evidence to support this
allegation. We do know, however, that terrorists and spies have
used libraries to plan and carry out activities that threaten
our national security. In 2005, then-Deputy Attorney James
Comey told the House Judiciary Committee about the dangers in
treating libraries differently from any other entity:
Prosecutors have always been able to obtain records
from libraries and bookstores through grand jury
subpoenas. Libraries and booksellers should not become
safe havens for terrorists and spies. Last year, a
member of a terrorist group closely affiliated with al
Qaeda used Internet service provided by a public
library to communicate with his confederates.
Furthermore, we know that spies have used public
library computers to do research to further their
espionage and to communicate with their co-
conspirators. For example, Brian Regan, a former TRW
employee working at the National Reconnaissance Office,
who was convicted of espionage, extensively used
computers at five public libraries in Northern Virginia
and Maryland to access addresses for the embassies of
certain foreign governments.\26\
---------------------------------------------------------------------------
\26\Testimony of James Comey, Deputy Attorney General, before the
House Committee on the Judiciary (June 8, 2005).
As Mr. Comey explained, we simply should not allow
libraries to become safe havens for terrorist or clandestine
activities.
ADDITIONAL ISSUES
In addition to the previously discussed problems, it is our
understanding that there are several other issues and problems
the Administration would like addressed in this legislation. We
concur with the following particular criticisms and
suggestions:
An effective date for the statute should be
added to give the government sufficient time to make
necessary adjustments to systems and processes to
accommodate the new law.
With respect to the public reporting
requirements of S. 1692, both the NSL and FISA
reporting requirements should be altered to ensure that
no publicly disclosed information could be used by
enemies of the United States to thwart surveillance or
to discern classified aspects of intelligence programs.
Section 3(a)(3)(B)(iii) of S. 1692 provides
that orders under Section 501(c) of FISA should include
the requirement that the order ``shall direct that the
minimization procedures be followed.'' This should be
corrected by a technical amendment to Section 501.
A provision should be added to ensure that
current orders issued pursuant to the statute will
remain in effect until they would be due for renewal.
It should be made clear that the changes to
the business record and pen register statutes are
intended to codify current practice under the relevance
standard and are not intended to prohibit or restrict
any activities approved by the FISA Court under
existing authorities.
It should be made clear that the new
provision regarding minimization in exceptional cases
is intended merely to codify the court-imposed
minimization regime with respect to certain programs,
and is not intended to require minimization in other
contexts.
CONCLUSION
Although we support the Committee's efforts to reauthorize
the three expiring PATRIOT Act provisions, we are deeply
concerned by some of the changes in S. 1692 that could create
unforeseen difficulties in ongoing and future counterterrorism
investigations. We are especially concerned by language adopted
in the Committee that would severely complicate the use of
NSLs.
The threat of violent Islamist extremism remains, not only
from al-Qaeda but now also from al-Qaeda allied terrorist
organizations operating around the world and lone wolf
terrorists operating on their own here in the United States.
The Zazi case and others make it clear that this is no time to
let our guard down. Just weeks before U.S. officials identified
Zazi as a possible terrorist threat, John Brennan, President
Obama's Assistant for Homeland Security and Counterterrorism,
stated publicly that ``another attack on the U.S. homeland
remains the top priority for the al Qaeda senior leadership.''
Our intelligence and law enforcement professionals need a
complete and immediate reauthorization of the expiring PATRIOT
Act authorities in order to continue their efforts to combat
the terrorist threat at home and abroad. As recent arrests and
indictments demonstrate, these vital tools are being used
responsibly and wisely by law enforcement to protect our nation
from another terrorist attack. Now is definitely not the time
for Congress to add new legal standards and bureaucratic
requirements to the legal authorities our counterterrorism
officials rely upon to identify and stop those responsible for
planning these terror attacks.
We hope S. 1692 can be modified before final passage to
create a more narrow reauthorization bill that creates fewer
questions about the impact on operations.
Jeff Sessions.
Orrin G. Hatch.
Chuck Grassley.
Jon Kyl.
Lindsey Graham.
John Cornyn.
Tom Coburn.
ADDITIONAL VIEWS FROM SENATOR KYL AND SENATOR CORNYN
We have numerous concerns with this bill, most of which are
explained in the statement of additional views that we signed
with Senators Sessions, Hatch, Grassley, Graham, and Coburn.
Simply put, this bill would make many changes to current law
that we believe are unwarranted and unwise given the continuing
threat of terrorism, the demonstrated effectiveness of the
PATRIOT Act tools in combating this threat,\1\ and the civil
liberties safeguards that are already part of the PATRIOT
Act.\2\ We write separately to explain why, notwithstanding our
broad concerns about the overall policy direction being taken
in this bill, we supported reporting it from the Committee.
---------------------------------------------------------------------------
\1\For instance, PATRIOT Act tools appear to have played an
important role in the arrest of terror suspect Najibullah Zazi. See
``Notice of Intent To Use Foreign Intelligence Surveillance Act
Information,'' United States v. Najibullah Zazi, U.S. District Court
for the District of Colorado, Docket No. 09-cr-03001-CBS, September 21,
2009; Christina Corbin, ``Patriot Act Likely Helped Thwart NYC Terror
Plot, Security Experts Say,'' FOX News, May 21, 2009, available at
http://www.foxnews.com/politics/2009/05/21/security-experts-say-
patriot-act-likely-helped-thwart-nyc-terror-plot/.
\2\One example of the protections afforded by the PATRIOT Act is
the ability of a party to challenge a Section 215 business records
order. On September 14, 2009, the Department of Justice sent a letter
to Chairman Leahy that said: ``It is noteworthy that no recipient of a
FISA business records order has ever challenged the validity of the
order, despite the availability, since 2006, of a clear statutory
mechanism to do so. At the time of the USA PATRIOT Act, there was
concern that the FBI would exploit the broad scope of the business
records authority to collect sensitive personal information on
constitutionally protected activities, such as the use of public
libraries. This simply has not occurred, even in the environment of
heightened terrorist threat activity.''
---------------------------------------------------------------------------
The bill that was originally before the Committee had a
number of provisions that would have directly affected ongoing
and future national security investigations in an adverse way.
The Chairman's substitute amendment was a step in the right
direction--it addressed some of those operational impacts. But
in a classified setting, officials from the Department of
Justice, the Federal Bureau of Investigation (FBI), and the
Office of the Director of National Intelligence confirmed that
several provisions in the substitute bill still could cause
significant operational problems.
Senator Sessions offered a number of amendments to address
specific concerns identified in that classified briefing. These
amendments were accepted. In addition, Senator Kyl offered two
amendments. The first required that a court give ``substantial
weight'' to a government certification that the disclosure of
the issuance of a national security letter would present a
danger to national security. Prior to adoption of this
amendment, the bill required only that a court give such a
certification ``appropriate weight.'' The second amendment
offered by Senator Kyl clarified that the bill's new
requirement that the FBI prepare and maintain a ``written
statement'' for every national security letter issued would not
be misconstrued as discouraging the use of national security
letters for preliminary investigations. It did this by
requiring that a written statement be based on ``specific''--as
opposed to ``specific and articulable''--facts. As with the
amendments offered by Senator Sessions, the adoption of these
amendments reduced the potential operational effects of the
bill.
Even with these improvements, the bill might still create
operational problems. For example, an amendment to require the
FBI to establish ``minimization procedures'' for national
security letters was agreed to over the objection of many
members, including ourselves. The amendment was described as
having the support of the Administration and as requiring only
that the Department of Justice and the FBI finalize procedures
that are already close to completion.\3\ After the Committee
voted to report the bill, however, the Justice Department and
the FBI expressed serious objections to the amendment.
According to them, the national security procedures that are
being drafted might not be viewed by a court as ``minimization
procedures,'' as would be required by the amendment. Moreover,
the Department of Justice and the FBI expressed doubt that
FISA-type ``minimization procedures'' were feasible in the
national security letters context. In fact, they feared that
``minimization procedures'' would pose substantial and
undesirable obstacles to the use of this important tool. The
Department of Justice and the FBI also raised a number of other
issues that they believe must be addressed before the bill can
be considered operationally neutral, including changes to the
bill's public reporting and audit provisions and the inclusion
of effective date language.
---------------------------------------------------------------------------
\3\See Transcript of Executive Business Meeting at 68-72, Committee
on the Judiciary, United States Senate, Oct. 8, 2009, available at
http://www.senate.gov/fplayers/CommPlayer/
commFlashPlayer.cfm?fn=judiciary100809&st=xxx (min. 114:04-118:20). In
relevant part, the transcript reads:
Senator Feingold. So people are clear before we vote. This
amendment is not about the standard for issuing NSLs. That was the
previous amendment that Senator Durbin and I offered. It is about
requiring the Executive Branch itself to have its own internal
procedures, which the IG specified were inadequate and we do not
specify what they will be.
* * *
Senator Feingold. Just very quickly, I want to reiterate what the
Chairman just said. I do not know of anybody over there that is saying
we should not do this. They are working on it. They think we ought to
do it. The FBI thinks we ought to do it. The Attorney General thinks
you ought to do it. They just have not gotten it done. We are just
telling them to get it done. So the notion that somehow this is some
terrible idea flies in the face of the very people you are often
quoting as saying this.
Senator Kyl. Senator Feingold, would you allow me to just interrupt
you for a comment then? If this amendment is adopted and if it turns
out that the statement you just made is correct, then I will back off
my opposition. If it turns out that the statement is incorrect, I would
hope we could revisit this. In other words, if the FBI says this is
going to potentially impede our operations with respect to these kinds
of letters--your statement was that they say that they are okay, that
we need them.
Senator Feingold. What I said was I know of nobody saying we should
not do this. They are working on it. We are telling them to get it done
in a timely manner. So, sure, if you find somebody----
Senator Kyl. If you would be willing to----
Senator Feingold. But nobody is saying that and they are working on
it.
Senator Leahy. Do you want a voice vote or roll call?
Senator Kyl. Mr. Chairman, at this time, I will just register my
objection based upon the agreement Senator Feingold and I have and then
I do not require a roll call vote.
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In light of the critical need to reauthorize the expiring
provisions by the end of the year, the progress that has been
made to improve the bill thus far, and, most importantly, our
understanding that the bill's sponsors will continue to work in
good faith with us to address any remaining adverse operational
impacts that the bill might have, we voted to keep this bill
moving forward. We did this despite serious misgivings about
the policy direction that the bill takes in many areas (for
example, the imposition of a new sunset on national security
letters). It is our hope that, with the help of the Department
of Justice and the FBI, we can continue to identify and fix
provisions of the bill that could have an adverse operational
effect. We will be able to support the final product only if it
does not impede the government's ability to investigate and
prevent terrorist activities. In this regard, the interaction
of the House and Senate will be critical.
Jon Kyl.
John Cornyn.
MINORITY VIEWS FROM SENATORS FEINGOLD, DURBIN AND SPECTER
S. 1692, as reported by this Committee, contains
improvements over current law that we support. Nonetheless, we
voted against reporting the bill because we believe it does not
go far enough. We commend the Chairman for his efforts to
include new civil liberties protections in this bill, including
important transparency and oversight measures. Our concerns are
generally not with what is in the bill; they are with what is
missing: adequate protections for the privacy of innocent
Americans. The government needs strong tools to combat
terrorism, but those tools also need to be subject to
sufficient safeguards and robust oversight.
There can be no doubt that significant statutory changes
are needed. In 2007, the Department of Justice Inspector
General concluded in a lengthy report that there had been
``widespread and serious misuse of the FBI's national security
letter authorities. In many instances, the FBI's misuse of
national security letters violated NSL statutes, Attorney
General Guidelines, or the FBI's own internal policies.'' The
USA PATRIOT Act vastly expanded the National Security Letter
(NSL) statutes, and the government can issue NSLs without
judicial review. The 2007 Inspector General report stated that
22% of NSL requests were not reported in the FBI tracking
database. It further identified more than 700 instances in
which the FBI improperly obtained telephone toll billing
records through the use of ``exigent letters.'' A recent FBI
briefing conveyed that after an internal review, the FBI
identified 4,379 unique numbers that were contained in either
exigent letters or so-called ``Blanket NSLs'' (which were
issued in an attempt to provide legal process for information
previously obtained via exigent letters or oral requests). Of
those, 610 were purged because the FBI could not reconcile the
data with any appropriate legal process. The Inspector General
also documented that the use of NSLs has been increasing,
particularly to gather information on U.S. persons. According
to the 2008 Inspector General report, the percentage of NSL
requests generated from investigations of U.S. persons grew
from 39% in 2003 to 57% in 2006. During this same time frame,
NSL requests relating to non-U.S. persons remained relatively
stable, while the number of requests relating to U.S. persons
grew from 6,519 in 2003 to 11,517 in 2006.
We appreciate the steps that the FBI has taken to address
the problems identified by the Inspector General's reports, but
ultimately we believe statutory reforms are needed to ensure
that such problems do not recur. And this is just one example;
the USA PATRIOT Act dramatically expanded other surveillance
authorities that also are not yet subject to adequate statutory
protections.
We preferred the original version of S. 1692 that the
Chairman introduced over the Committee-reported version. The
substitute amendment weakened some of the most substantial
privacy protections that were in the original version of the
bill.
Nonetheless, the bill does contain some important
improvements. We support the new Department of Justice
Inspector General audit requirements. It is due to similar
provisions that the Chairman championed in the 2005
reauthorization legislation that we now know about the
extensive misuse of the National Security Letter authorities by
the FBI. The public reporting requirements in S. 1692 will help
bring additional transparency to how National Security Letters
and Foreign Intelligence Surveillance Act authorities are used.
And changes to the provisions governing NSL and Section 215
nondisclosure orders help bring those provisions in line with
the First Amendment.
We strongly support the inclusion of a change to the
statute governing delayed notification criminal search
warrants, 18 U.S.C. Sec. 3103a, which was enacted as part of
the USA PATRIOT Act and permits the government to secretly
search people's houses in the course of ordinary criminal
investigations and not notify them until weeks or months later.
The Committee-reported bill shortens the presumptive time
period for delayed notice from 30 days to 7 days. A July 2009
report of the Administrative Office of the U.S. Courts
confirmed that these so-called ``sneak and peek'' warrants are
only very rarely used in terrorism cases. Given the very
substantial privacy interests at stake, we are pleased that the
bill shortens the presumptive notification period.
The bill also contains new four-year sunsets, including for
the first time a sunset for National Security Letters. It would
be our preference to finally fix these authorities once and for
all, but it is important to note that establishing sunsets will
require Congress to reconsider these authorities in the future.
We do question the need to extend the so-called ``lone wolf''
authority, given that it has never been used and that it raises
serious constitutional questions.
We also agree with the provision in the bill requiring that
minimization procedures for Section 215 orders be court-
approved. We were disappointed that a similar provision for
FISA pen register and trap and trace device orders was modified
during the markup process to essentially make pen/trap
minimization procedures optional. We were pleased that the
Committee adopted by voice vote an amendment offered by Senator
Feingold that would require the Attorney General within 180
days to issue minimization procedures for National Security
Letters. This was a recommendation of the Department of Justice
Inspector General, who testified as follows at the September
23, 2009, Senate Judiciary Committee hearing:
We believe that the Department should promptly . . .
issue final minimization procedures for NSLs that
address the collection of information through NSLs, how
the FBI can upload NSL information in FBI databases,
the dissemination of NSL information, the appropriate
tagging and tracking of NSL derived information in FBI
databases and files, and the time period for retention
of NSL obtained information. At this point, more than 2
years have elapsed since after our first report was
issued, and final guidance is needed and overdue.
We agree with the Inspector General that these procedures
need to be completed. We understand that the FBI and Justice
Department have been working on this, and we believe that a
statutory mandate to promulgate such procedures in combination
with a firm deadline will ensure this recommendation is
implemented. Of course, procedures governing the acquisition,
retention and dissemination of records obtained via National
Security Letters will be different from minimization procedures
established for the collection of the full contents of
communications. It nonetheless remains important that such
procedures be established, particularly because National
Security Letters are used without any FISA Court review or
oversight.
New sunsets, audits, reporting requirements and executive
branch procedures are positive reforms, but ultimately Congress
must set the rules for when the Executive Branch can use
investigative tools that have implications for Americans'
privacy rights. That is why we were disappointed that the
Committee rejected amendments that would have imposed stricter
statutory standards for obtaining any tangible things under
Section 215 of the USA PATRIOT Act and for obtaining sensitive
personal records under the NSL statutes--standards that would
have protected against government fishing expeditions.
The standard under current law for both authorities is mere
relevance to an investigation to protect against international
terrorism or clandestine intelligence activities. That is a
very broad standard, which does not provide, in our view,
adequate protection against unnecessary, overbroad, or
otherwise inappropriate demands for records. Senator Durbin
offered amendments that would have changed the standard--for
both Section 215 and NSLs--to require some connection, however
remote, to a suspected terrorist or spy. Specifically, the
standard he proposed would require the government to
demonstrate that the records sought are relevant to a national
security investigation, and that the records (1) pertain to an
agent of a foreign power; (2) pertain to someone in contact
with or known to an agent of a foreign power; or (3) are
relevant to the activities of an agent of a foreign power.
This is the same standard that the Committee-reported bill
would impose on the use of Section 215 to obtain library
circulation records and patron lists. While library records are
particularly sensitive, so are other records that can be
obtained with Section 215 orders, such as medical and
bookseller records. Thus, we believe this standard should apply
to all records and other tangible things sought under Section
215, not just library records. Indeed, the original version of
S. 1692 did just that, but that important protection was
limited to library records in the complete substitute. The
three-part standard that Senator Durbin proposed would give the
FBI the authority and flexibility it needs to conduct
intelligence investigations, while also ensuring that the
records it collects have some direct or indirect connection to
a suspected terrorist or spy--an important protection for
innocent Americans.
It is also important to note that this three-part standard
is not a new proposal. When the Committee considered USA
PATRIOT Act reauthorization legislation in 2005, it unanimously
reported a bill, S. 1389 (109th Cong.), that contained this
standard for Section 215 orders. That bill then passed the
Senate by unanimous consent in July 2005. We believe this
provision should be included in this reauthorization
legislation for Section 215 orders, NSLs, and FISA pen/traps--
and that the failure to do so is the biggest gap in the
legislation.
We also would have preferred that the Committee-reported
bill include additional modifications to address, among other
things, the permanent, automatic gag orders that are imposed on
all recipients of Section 215 orders; the language in FISA that
permits the government to obtain so-called ``John Doe'' roving
wiretap orders based simply on a ``description'' of a target;
and the circumstances in which criminal sneak and peek search
warrants are allowed. Many of the reforms we support are
included in S. 1686, the JUSTICE Act, which Senator Feingold
introduced.
In sum, we believe Congress should take the opportunity
presented by this reauthorization process to reform the
surveillance authorities so dramatically expanded by the USA
PATRIOT Act once and for all. S. 1692 contains additional
transparency measures, sunsets that will force Congress to
revisit these issues in four years, and some important but
modest changes to the authorities that raise civil liberties
concerns. However, we believe additional checks and balances
are needed and therefore we opposed reporting the bill in this
form to the full Senate.
Russell D. Feingold.
Richard Durbin.
Arlen Specter.
VIII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1692, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
UNITED STATES CODE
TITLE 12--BANKS AND BANKING
* * * * * * *
CHAPTER 35--RIGHT TO FINANCIAL PRIVACY
* * * * * * *
SEC. 3414. SPECIAL PROCEDURES.
(a)(1) Nothing in this chapter (except sections 3415, 3417,
3418, and 3421 of this title) shall apply to the production and
disclosure of financial records pursuant to requests from--
(A) a Government authority authorized to conduct
foreign counter- or foreign positive-intelligence
activities for purposes of conducting such activities;
(B) the Secret Service for the purpose of conducting
its protective functions (18 U.S.C. 3056; 18 U.S.C.
3056A, Public Law 90-331, as amended); or
(C) a Government authority authorized to conduct
investigations of, or intelligence or
counterintelligence analyses related to, international
terrorism for the purpose of conducting such
investigations or analyses.
(2) In the instances specified in paragraph (1), the
Government authority shall submit to the financial institution
the certificate required in section 3403(b) of this title
signed by a supervisory official of a rank designated by the
head of the Government authority.
(3)(A) If the Government authority described in paragraph
(1) or the Secret Service, as the case may be, 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 Government authority or the Secret Service has sought
or obtained access to a customer's financial records.
(B) The request shall notify the person or entity to whom
the request is directed of the nondisclosure requirement under
subparagraph (A).
(C) 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 subparagraph (A).
(D) At the request of the authorized Government authority
or the Secret Service, any person making or intending to make a
disclosure under this section shall identify to the requesting
official of the authorized Government authority or the Secret
Service 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 authorized Government authority or
the Secret Service 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 this subsection.
(4) The Government authority specified in paragraph (1)
shall compile an annual tabulation of the occasions in which
this section was used.
(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 [FN1] 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 Director of the Federal Bureau of Investigation, or
a 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 make a
certification under subparagraph (A) only upon a written
statement, which shall be retained by the Federal Bureau of
Investigation, of specific facts showing that there are
reasonable grounds to believe that the information sought is
relevant to the authorized investigation described in
subparagraph (A).
(C)[(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.
(D)[(C)] On the dates provided in section 415b of Title 50,
the Attorney General shall fully inform the congressional
intelligence committees (as defined in section 401a of Title
50) 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).]
(E) Prohibition of Certain Disclosure.--
(i) Prohibition.--
(I) In general.--If a certification is issued
under subclause (II) and notice of the right to
judicial review under clause (iii) is provided,
no financial institution, or officer, employee,
or agent thereof, that receives a request under
subparagraph (A), shall disclose to any person
that the Federal Bureau of Investigation has
sought or obtained access to information or
records under subparagraph (A).
(II) Certification.--The requirements of
subclause (I) shall apply if the Director of
the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no
lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a
Bureau field office, certifies that, absent a
prohibition of disclosure under this
subparagraph, there may result--
(aa) a danger to the national
security of the United States;
(bb) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(cc) interference with diplomatic
relations; or
(dd) danger to the life or physical
safety of any person.
(ii) Exception.--
(I) In general.--A financial institution, or
officer, employee, or agent thereof, that
receives a request under subparagraph (A) may
disclose information otherwise subject to any
applicable nondisclosure requirement to
(aa) those persons to whom disclosure
is necessary in order to comply with
the request;
(bb) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(cc) other persons as permitted by
the Director of the Federal Bureau of
Investigation or the designee of the
Director.
(II) Persons necessary for compliance.--Upon
a request by the Director of the Federal Bureau
of Investigation or the designee of the
Director, those persons to whom disclosure will
be made under subclause (I)(aa) or to whom such
disclosure was made before the request shall be
identified to the Director or the designee.
(III) Nondisclosure requirement.--A person to
whom disclosure is made under subclause (I)
shall be subject to the nondisclosure
requirements applicable to a person to whom a
request is issued under subparagraph (A) in the
same manner as the person to whom the request
is issued.
(IV) Notice.--Any recipient that discloses to
a person described in subclause (I) information
otherwise subject to a nondisclosure
requirement shall inform the person of the
applicable nondisclosure requirement.
(iii) Right to judicial review.--
(I) In general.--A financial institution that
receives a request under subparagraph (A) shall
have the right to judicial review of any
applicable nondisclosure requirement.
(II) Notification.--A request under
subparagraph (A) shall state that if the
recipient wishes to have a court review a
nondisclosure requirement, the recipient shall
notify the Government.
(III) Initiation of proceedings.--If a
recipient of a request under subparagraph (A)
makes a notification under subclause (II), the
Government shall initiate judicial review under
the procedures established in section 3511 of
title 18, United States Code, unless an
appropriate official of the Federal Bureau of
Investigation makes a notification under clause
(iv).
(iv) Termination.--In the case of any request for
which a financial institution has submitted a
notification under clause (iii)(II), if the facts
supporting a nondisclosure requirement cease to exist,
an appropriate official of the Federal Bureau of
Investigation shall promptly notify the financial
institution, or officer, employee, or agent thereof,
subject to the nondisclosure requirement that the
nondisclosure requirement is no longer in effect.
(b)(1) Nothing in this chapter shall prohibit a Government
authority from obtaining financial records from a financial
institution if the Government authority determines that delay
in obtaining access to such records would create imminent
danger of--
(A) physical injury to any person;
(B) serious property damage; or
(C) flight to avoid prosecution.
(2) In the instances specified in paragraph (1), the
Government shall submit to the financial institution the
certificate required in section 3403(b) of this title signed by
a supervisory official of a rank designated by the head of the
Government authority.
(3) Within five days of obtaining access to financial
records under this subsection, the Government authority shall
file with the appropriate court a signed, sworn statement of a
supervisory official of a rank designated by the head of the
Government authority setting forth the grounds for the
emergency access. The Government authority shall thereafter
comply with the notice provisions of section 3409(c) of this
title.
(4) The Government authority specified in paragraph (1)
shall compile an annual tabulation of the occasions in which
this section was used.
* * * * * * *
(d) For purposes of this section, and sections 3415 and
3417 of this title insofar as they relate to the operation of
this section, the term ``financial institution'' has the same
meaning as in subsections (a)(2) and (c)(1) of section 5312 of
Title 31, except that, for purposes of this section, such term
shall include only such a financial institution any part of
which is located inside any State or territory of the United
States, the District of Columbia, Puerto Rico, Guam, American
Samoa, the Commonwealth of the Northern Mariana Islands, or the
United States Virgin Islands.
* * * * * * *
TITLE 15--COMMERCE AND TRADE
* * * * * * *
CHAPTER 41--CONSUMER CREDIT PROTECTION
Subchapter III--Credit Reporting Agencies
SEC. 1681U. DISCLOSURES TO FBI FOR COUNTERINTELLIGENCE PURPOSES.
* * * * * * *
[(d) Confidentiality.--
[(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 consumer
reporting agency or officer, employee, or agent of a
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) that the Federal Bureau of Investigation has
sought or obtained the identity of financial
institutions or a consumer report respecting any
consumer under subsection (a), (b), or (c) of this
section, and no consumer reporting agency or officer,
employee, or agent of a consumer reporting agency shall
include in any consumer report any information that
would indicate that the Federal Bureau of Investigation
has sought or obtained such information on a consumer
report.
[(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 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 the identity of financial institutions or a
consumer report respecting any consumer under this
section.]
(d) Written Statement.--The Director of the Federal Bureau
of Investigation, or a 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 make a certification under subsection (a) or (b)
only upon a written statement, which shall be retained by the
Federal Bureau of Investigation, of specific facts showing that
there are reasonable grounds to believe that the information
sought is relevant to the authorized investigation described in
subsection (a) or (b), as the case may be.
(e) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is issued
under subparagraph (B) and notice of the right
to judicial review under paragraph (3) is
provided, no consumer reporting agency, or
officer, employee, or agent thereof, that
receives a request or order under subsection
(a), (b), or (c), shall disclose or specify in
any consumer report, that the Federal Bureau of
Investigation has sought or obtained access to
information or records under subsection (a),
(b), or (c).
(B) Certification.--The requirements of
subparagraph (A) shall apply if the Director of
the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no
lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a
Bureau field office, certifies that, absent a
prohibition of disclosure under this
subsection, there may result--
(i) a danger to the national security
of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A consumer reporting agency,
or officer, employee, or agent thereof, that
receives a request or order under subsection
(a), (b), or (c) may disclose information
otherwise subject to any applicable
nondisclosure requirement to--
(i) those persons to whom disclosure
is necessary in order to comply with
the request or order;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request or order; or
(iii) other persons as permitted by
the Director of the Federal Bureau of
Investigation or the designee of the
Director.
(B) Persons necessary for compliance.--Upon a
request by the Director of the Federal Bureau
of Investigation or the designee of the
Director, those persons to whom disclosure will
be made under subparagraph (A)(i) or to whom
such disclosure was made before the request
shall be identified to the Director or the
designee.
(C) Nondisclosure requirement.--A person to
whom disclosure is made under subparagraph (A)
shall be subject to the nondisclosure
requirements applicable to a person to whom a
request or order is issued under subsection
(a), (b), or (c) in the same manner as the
person to whom the request or order is issued.
(D) Notice.--Any recipient that discloses to
a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall inform the
person of the applicable nondisclosure
requirement.
(3) Right to judicial review.--
(A) In general.--A consumer reporting agency
that receives a request or order under
subsection (a), (b), or (c) shall have the
right to judicial review of any applicable
nondisclosure requirement.
(B) Notification.--A request or order under
subsection (a), (b), or (c) shall state that if
the recipient wishes to have a court review a
nondisclosure requirement, the recipient shall
notify the Government.
(C) Initiation of proceedings.--If a
recipient of a request or order under
subsection (a), (b), or (c) makes a
notification under subparagraph (B), the
Government shall initiate judicial review under
the procedures established in section 3511 of
title 18, United States Code, unless an
appropriate official of the Federal Bureau of
Investigation makes a notification under
paragraph (4).
(4) Termination.--In the case of any request or order
for which a consumer reporting agency has submitted a
notification under paragraph (3)(B), if the facts
supporting a nondisclosure requirement cease to exist,
an appropriate official of the Federal Bureau of
Investigation shall promptly notify the consumer
reporting agency, or officer, employee, or agent
thereof, subject to the nondisclosure requirement that
the nondisclosure requirement is no longer in effect.
(f)[(e)] Payment of Fees.--The Federal Bureau of
Investigation shall, subject to the availability of
appropriations, pay to the consumer reporting agency assembling
or providing report or information in accordance with
procedures established under this section a fee for
reimbursement for such costs as are reasonably necessary and
which have been directly incurred in searching, reproducing, or
transporting books, papers, records, or other data required or
requested to be produced under this section.
(g)[(f)] Limit on Dissemination.--The Federal Bureau of
Investigation may not disseminate information obtained pursuant
to this section outside of the Federal Bureau of Investigation,
except to other Federal agencies as may be necessary for the
approval or conduct of a foreign counterintelligence
investigation, or, where the information concerns a person
subject to the Uniform Code of Military Justice, to appropriate
investigative authorities within the military department
concerned as may be necessary for the conduct of a joint
foreign counterintelligence investigation.
(h)[(g)] Rules of Construction.--Nothing in this section
shall be construed to prohibit information from being furnished
by the Federal Bureau of Investigation pursuant to a subpoena
or court order, in connection with a judicial or administrative
proceeding to enforce the provisions of this subchapter.
Nothing in this section shall be construed to authorize or
permit the withholding of information from the Congress.
(i)[(h)] Reports to Congress.--
(1) On a semiannual basis, the Attorney General shall
fully inform the Permanent Select Committee on
Intelligence and the Committee on Banking, Finance and
Urban Affairs of the House of Representatives, and the
Select Committee on Intelligence and the Committee on
Banking, Housing, and Urban Affairs of the Senate
concerning all requests made pursuant to subsections
(a), (b), and (c) of this section.
(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 415b of
Title 50.
(j)[(i)] Damages.--Any agency or department of the United
States obtaining or disclosing any consumer reports, records,
or information contained therein in violation of this section
is liable to the consumer to whom such consumer reports,
records, or information relate in an amount equal to the sum
of--
(1) $100, without regard to the volume of consumer
reports, records, or information involved;
(2) any actual damages sustained by the consumer as a
result of the disclosure;
(3) if the violation is found to have been willful or
intentional, such punitive damages as a court may
allow; and
(4) in the case of any successful action to enforce
liability under this subsection, the costs of the
action, together with reasonable attorney fees, as
determined by the court.
(k)[(j)] Disciplinary Actions for Violations.--If a court
determines that any agency or department of the United States
has violated any provision of this section and the court finds
that the circumstances surrounding the violation raise
questions of whether or not an officer or employee of the
agency or department acted willfully or intentionally with
respect to the violation, the agency or department shall
promptly initiate a proceeding to determine whether or not
disciplinary action is warranted against the officer or
employee who was responsible for the violation.
(l)[(k)] Good-Faith Exception.--Notwithstanding any other
provision of this subchapter, any consumer reporting agency or
agent or employee thereof making disclosure of consumer reports
or identifying information pursuant to this subsection in good-
faith reliance upon a certification of the Federal Bureau of
Investigation pursuant to 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.
(m)[(l)] Limitation of Remedies.--Notwithstanding any other
provision of this subchapter, the remedies and sanctions set
forth in this section shall be the only judicial remedies and
sanctions for violation of this section.
(n)[(m)] Injunctive Relief.--In addition to any other
remedy contained in this section, injunctive relief shall be
available to require compliance with the procedures of this
section. In the event of any successful action under this
subsection, costs together with reasonable attorney fees, as
determined by the court, may be recovered.
SEC. 1681V. DISCLOSURES TO GOVERNMENTAL AGENCIES FOR COUNTERTERRORISM
PURPOSES.
(a) Disclosure.--Notwithstanding section 1681b of this
title or any other provision of this subchapter, 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) Certification [Form of Certification].--
[The certification] (1) Form of certification._The
certification described in subsection (a) of this
section 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.
(2) Written statement.--A supervisory official or
officer described in paragraph (1) may make a
certification under subsection (a) only upon a written
statement, which shall be retained by the government
agency, of specific facts showing that there are
reasonable grounds to believe that the information
sought is relevant to the authorized investigation
described in subsection (a).
[(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) of 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 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) of this section.]
(c) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is issued
under subparagraph (B) and notice of the right
to judicial review under paragraph (3) is
provided, no consumer reporting agency, or
officer, employee, or agent thereof, that
receives a request under subsection (a), shall
disclose to any person or specify in any
consumer report, that a government agency has
sought or obtained access to information under
subsection (a).
(B) Certification.--The requirements of
subparagraph (A) shall apply if the head of a
government agency authorized to conduct
investigations of, or intelligence or
counterintelligence activities or analysis
related to, international terrorism, or a
designee, certifies that, absent a prohibition
of disclosure under this subsection, there may
result--
(i) a danger to the national security
of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A consumer reporting agency,
or officer, employee, or agent thereof, that
receives a request under subsection (a) may
disclose information otherwise subject to any
applicable nondisclosure requirement to--
(i) those persons to whom disclosure
is necessary in order to comply with
the request;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(iii) other persons as permitted by
the head of the government agency
authorized to conduct investigations
of, or intelligence or
counterintelligence activities or
analysis related to, international
terrorism, or a designee.
(B) Persons necessary for compliance.--Upon a
request by the head of a government agency
authorized to conduct investigations of, or
intelligence or counterintelligence activities
or analysis related to, international
terrorism, or a designee, those persons to whom
disclosure will be made under subparagraph
(A)(i) or to whom such disclosure was made
before the request shall be identified to the
head of the government agency or the designee.
(C) Nondisclosure requirement.--A person to
whom disclosure is made under subparagraph (A)
shall be subject to the nondisclosure
requirements applicable to a person to whom a
request is issued under subsection (a) in the
same manner as the person to whom the request
is issued.
(D) Notice.--Any recipient that discloses to
a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall inform the
person of the applicable nondisclosure
requirement.
(3) Right to judicial review.--
(A) In general.--A consumer reporting agency
that receives a request under subsection (a)
shall have the right to judicial review of any
applicable nondisclosure requirement.
(B) Notification.--A request under subsection
(a) shall state that if the recipient wishes to
have a court review a nondisclosure
requirement, the recipient shall notify the
government.
(C) Initiation of proceedings.--If a
recipient of a request under subsection (a)
makes a notification under subparagraph (B),
the government shall initiate judicial review
under the procedures established in section
3511 of title 18, United States Code, unless an
appropriate official of the government agency
authorized to conduct investigations of, or
intelligence or counterintelligence activities
or analysis related to, international terrorism
makes a notification under paragraph (4).
(4) Termination.--In the case of any request for
which a consumer reporting agency has submitted a
notification under paragraph (3)(B), if the facts
supporting a nondisclosure requirement cease to exist,
an appropriate official of the government agency
authorized to conduct investigations of, or
intelligence or counterintelligence activities or
analysis related to, international terrorism shall
promptly notify the consumer reporting agency, or
officer, employee, or agent thereof, subject to the
nondisclosure requirement that the nondisclosure
requirement is no longer in effect.
(d) Rule of Construction.--Nothing in section 1681u of this
title 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 subchapter, 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 [FN1], 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 415b of
title 50.
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
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).]
(c) Written Statement.--The Director of the Federal Bureau
of Investigation, or a 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 make a certification under subsection (b) only
upon a written statement, which shall be retained by the
Federal Bureau of Investigation, of specific facts showing that
there are reasonable grounds to believe that the information
sought is relevant to the authorized investigation described in
subsection (b).
(d) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is issued
under subparagraph (B) and notice of the right
to judicial review under paragraph (3) is
provided, no wire or electronic communication
service provider, or officer, employee, or
agent thereof, that receives a request under
subsection (a), shall disclose to any person
that the Director of the Federal Bureau of
Investigation has sought or obtained access to
information or records under this section.
(B) Certification.--The requirements of
subparagraph (A) shall apply if the Director of
the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no
lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a
Bureau field office, certifies that, absent a
prohibition of disclosure under this
subsection, there may result--
(i) a danger to the national security
of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A wire or electronic
communication service provider, or officer,
employee, or agent thereof, that receives a
request under subsection (a) may disclose
information otherwise subject to any applicable
nondisclosure requirement to--
(i) those persons to whom disclosure
is necessary in order to comply with
the request;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(iii) other persons as permitted by
the Director of the Federal Bureau of
Investigation or the designee of the
Director.
(B) Persons necessary for compliance.--Upon a
request by the Director of the Federal Bureau
of Investigation or the designee of the
Director, those persons to whom disclosure will
be made under subparagraph (A)(i) or to whom
such disclosure was made before the request
shall be identified to the Director or the
designee.
(C) Nondisclosure requirement.--A person to
whom disclosure is made under subparagraph (A)
shall be subject to the nondisclosure
requirements applicable to a person to whom a
request is issued under subsection (a) in the
same manner as the person to whom the request
is issued.
(D) Notice.--Any recipient that discloses to
a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall inform the
person of the applicable nondisclosure
requirement.
(3) Right to judicial review.--
(A) In general.--A wire or electronic
communications service provider that receives a
request under subsection (a) shall have the
right to judicial review of any applicable
nondisclosure requirement.
(B) Notification.--A request under subsection
(a) shall state that if the recipient wishes to
have a court review a nondisclosure
requirement, the recipient shall notify the
Government.
(C) Initiation of proceedings.--If a
recipient of a request under subsection (a)
makes a notification under subparagraph (B),
the Government shall initiate judicial review
under the procedures established in section
3511 of this title, unless an appropriate
official of the Federal Bureau of the
Investigation makes a notification under
paragraph (4).
(4) Termination.--In the case of any request for
which a recipient has submitted a notification under
paragraph (3)(B), if the facts supporting a
nondisclosure requirement cease to exist, an
appropriate official of the Federal Bureau of
Investigation shall promptly notify the wire or
electronic service provider, or officer, employee, or
agent thereof, subject to the nondisclosure requirement
that the nondisclosure requirement is no longer in
effect.
(e)[(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.
(f)[(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.
(g)[(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. 3103A. ADDITIONAL GROUNDS FOR ISSUING WARRANT.
(a) In General.--In addition to the grounds for issuing a
warrant in section 3103 of this title, a warrant may be issued
to search for and seize any property that constitutes evidence
of a criminal offense in violation of the laws of the United
States.
(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);
(2) the warrant prohibits the seizure of any tangible
property, any wire or electronic communication (as
defined in section 2510), or, except as expressly
provided in chapter 121, any stored wire or electronic
information, except where the court finds reasonable
necessity for the seizure; and
(3) the warrant provides for the giving of such
notice within a reasonable period not to exceed 7 [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.
(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.
(d) Reports.--
(1) Report by judge.--Not later than 30 days after
the expiration of a warrant authorizing delayed notice
(including any extension thereof) entered under this
section, or the denial of such warrant (or request for
extension), the issuing or denying judge shall report
to the Administrative Office of the United States
Courts--
(A) the fact that a warrant was applied for;
(B) the fact that the warrant or any
extension thereof was granted as applied for,
was modified, or was denied;
(C) the period of delay in the giving of
notice authorized by the warrant, and the
number and duration of any extensions; and
(D) the offense specified in the warrant or
application.
(2) Report by Administrative Office of the United
States Courts.--Beginning with the fiscal year ending
September 30, 2007, the Director of the Administrative
Office of the United States Courts shall transmit to
Congress annually a full and complete report
summarizing the data required to be filed with the
Administrative Office by paragraph (1), including the
number of applications for warrants and extensions of
warrants authorizing delayed notice, and the number of
such warrants and extensions granted or denied during
the preceding fiscal year.
(3) Regulations.--The Director of the Administrative
Office of the United States Courts, in consultation
with the Attorney General, is authorized to issue
binding regulations dealing with the content and form
of the reports required to be filed under paragraph
(1).
SEC. 3511. JUDICIAL REVIEW OF REQUESTS FOR INFORMATION.
(a) 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, in the
United States district court for the district in which that
person or entity does business or resides, petition for an
order modifying or setting aside the request. The court may
modify or set aside the request if compliance would be
unreasonable, oppressive, or otherwise unlawful.
[(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 of 1978
(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 or order, 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 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 shall, subject to paragraph
(3), issue a nondisclosure order that includes
conditions appropriate to the circumstances.
(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, containing 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
shall issue a nondisclosure requirement order or
extension thereof under this subsection if the court
determines, giving substantial weight to the
certification under paragraph (2) that there is reason
to believe that disclosure of the information subject
to the nondisclosure requirement during the applicable
time period will result in--
(A) a danger to the national security of the
United States;
(B) interference with a criminal,
counterterrorism, or counterintelligence
investigation;
(C) interference with diplomatic relations;
or
(D) danger to the life or physical safety of
any person.
(c) In the case of a failure to comply with a request for
records, a report, or other information made to any person or
entity 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 may invoke the aid of any district court of the United
States within the jurisdiction in which the investigation is
carried on or the person or entity resides, carries on
business, or may be found, to compel compliance with the
request. The court may issue an order requiring the person or
entity to comply with the request. Any failure to obey the
order of the court may be punished by the court as contempt
thereof. Any process under this section may be served in any
judicial district in which the person or entity may be found.
(d) In all proceedings under this section, subject to any
right to an open hearing in a contempt proceeding, the court
must close any hearing to the extent necessary to prevent an
unauthorized disclosure of a request for records, a report, or
other information made to any person or entity 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. Petitions, filings, records, orders, and
subpoenas must also be kept under seal to the extent and as
long as necessary to prevent the unauthorized disclosure of a
request for records, a report, or other information made to any
person or entity 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.
(e) In all proceedings under this section, the court shall,
upon request of the government, review ex parte and in camera
any government submission or portions thereof, which may
include classified information.
* * * * * * *
TITLE 50--WAR AND NATIONAL DEFENSE
* * * * * * *
CHAPTER 15--NATIONAL SECURITY
Subchapter VI--Access to Classified Information
SEC. 436. REQUESTS BY AUTHORIZED INVESTIGATIVE AGENCIES.
(a) Generally.--
(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)
of this section.
(4) A department or agency head, deputy department or
agency head, or senior official described in paragraph
(3)(A) may make a certification under paragraph (3)(A)
only upon a written statement, which shall be retained
by the authorized investigative agency, of specific
facts showing that there are reasonable grounds to
believe that the information sought is relevant to the
authorized inquiry or investigation described in
paragraph (3)(A)(ii).
[(b) Prohibition of Certain Disclosure.--
[(1) If an authorized investigative agency described
in subsection (a) of this section 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) of this section.]
(b) Prohibition of Certain Disclosure.--
(1) Prohibition.--
(A) In general.--If a certification is issued
under subparagraph (B) and notice of the right
to judicial review under paragraph (4) is
provided, no governmental or private entity, or
officer, employee, or agent thereof, that
receives a request under subsection (a), shall
disclose to any person the particular
information specified in the certification
during the time period to which the
certification applies, which may be not longer
than 1 year.
(B) Certification.--The requirements of
subparagraph (A) shall apply if the head of an
authorized investigative agency described in
subsection (a), or a designee, certifies that,
absent a prohibition of disclosure under this
subsection, there may result--
(i) a danger to the national security
of the United States;
(ii) interference with a criminal,
counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic
relations; or
(iv) danger to the life or physical
safety of any person.
(2) Exception.--
(A) In general.--A governmental or private
entity, or officer, employee, or agent thereof,
that receives a request under subsection (a)
may disclose information otherwise subject to
any applicable nondisclosure requirement to--
(i) those persons to whom disclosure
is necessary in order to comply with
the request;
(ii) an attorney in order to obtain
legal advice or assistance regarding
the request; or
(iii) other persons as permitted by
the head of the authorized
investigative agency described in
subsection (a).
(B) Nondisclosure requirement.--A person to
whom disclosure is made under subparagraph (A)
shall be subject to the nondisclosure
requirements applicable to a person to whom a
request is issued under subsection (a) in the
same manner as the person to whom the request
is issued.
(C) Notice.--Any recipient that discloses to
a person described in subparagraph (A)
information otherwise subject to a
nondisclosure requirement shall inform the
person of the applicable nondisclosure
requirement.
(3) Extension.--The head of an authorized
investigative agency described in subsection (a), or a
designee, may extend a nondisclosure requirement for
additional periods of not longer than 1 year if, at the
time of each extension, a new certification is made
under paragraph (1)(B) and notice is provided to the
recipient of the applicable request that the
nondisclosure requirement has been extended and the
recipient has the right to judicial review of the
nondisclosure requirement.
(4) Right to judicial review.--
(A) In general.--A governmental or private
entity that receives a request under subsection
(a) shall have the right to judicial review of
any applicable nondisclosure requirement and
any extension thereof.
(B) Timing.--
(i) In general.--A request under
subsection (a) shall state that if the
recipient wishes to have a court review
a nondisclosure requirement, the
recipient shall notify the Government
not later than 21 days after the date
of receipt of the request.
(ii) Extension.--A notice that the
applicable nondisclosure requirement
has been extended under paragraph (3)
shall state that if the recipient
wishes to have a court review the
nondisclosure requirement, the
recipient shall notify the Government
not later than 21 days after the date
of receipt of the notice.
(C) Initiation of proceedings.--If a
recipient of a request under subsection (a)
makes a notification under subparagraph (B),
the Government shall initiate judicial review
under the procedures established in section
3511 of title 18, United States Code.
(5) Termination.--If the facts supporting a
nondisclosure requirement cease to exist prior to the
applicable time period of the nondisclosure
requirement, an appropriate official of the authorized
investigative agency described in subsection (a) shall
promptly notify the governmental or private entity, or
officer, employee, or agent thereof, subject to the
nondisclosure requirement that the nondisclosure
requirement is no longer in effect.
(c) Records or Information; Inspection or Copying.--
(1) Notwithstanding any other provision of law (other
than section 6103 of Title 26), an entity receiving a
request for records or information under subsection (a)
of this section 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
subchapter, the constitution of any State, or any law
or regulation of any State or any political subdivision
of any State.
(d) Reimbursement of Costs.--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) Dissemination of Records or Information Received.--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) Construction of Section.--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.).
* * * * * * *
CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE
Subchapter III--Pen Registers and Trap and Trace Devices for Foreign
Intelligence Purposes
SEC. 1841. DEFINITION.
As used in this subchapter:
(1) The terms ``foreign power'', ``agent of a foreign
power'', ``international terrorism'', ``foreign
intelligence information'', ``Attorney General'',
``United States person'', ``United States'',
``person'', and ``State'' shall have the same meanings
as in section 1801 of this title.
(2) The terms ``pen register'' and ``trap and trace
device'' have the meanings given such terms in section
3127 of Title 18.
(3) The term ``aggrieved person'' means any person--
(A) whose telephone line was subject to the
installation or use of a pen register or trap
and trace device authorized by this subchapter;
or
(B) whose communication instrument or device
was subject to the use of a pen register or
trap and trace device authorized by this
subchapter to capture incoming electronic or
other communications impulses.
(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.
SEC. 1842. PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE AND INTERNATIONAL TERRORISM
INVESTIGATIONS.
(a) Application for Authorization or Approval.--
(1) Notwithstanding any other provision of law, the
Attorney General or a designated attorney for the
Government may make an application for an order or an
extension of an order authorizing or approving the
installation and use of a pen register or trap and
trace device for any 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 to the Constitution which is
being conducted by the Federal Bureau of Investigation
under such guidelines as the Attorney General approves
pursuant to Executive Order No. 12333, or a successor
order.
(2) The authority under paragraph (1) is in addition
to the authority under subchapter I of this chapter to
conduct the electronic surveillance referred to in that
paragraph.
(b) Form of Application; Recipient.--Each application under
this section shall be in writing under oath or affirmation to--
(1) a judge of the court established by section
1803(a) of this title; or
(2) a United States Magistrate Judge under chapter 43
of Title 28, who is publicly designated by the Chief
Justice of the United States to have the power to hear
applications for and grant orders approving the
installation and use of a pen register or trap and
trace device on behalf of a judge of that court.
(c) Executive Approval; Contents of Application.--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 and circumstances 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 whether minimization procedures
are being proposed and, if so, a statement of the
proposed minimization procedures.
(d) Ex Parte Judicial Order of Approval.--
(1) Upon an application made pursuant to this
section, the judge shall enter an ex parte order as
requested, or as modified, approving the installation
and use of a pen register or trap and trace device if
the judge finds that the application satisfies the
requirements of this section, and if, in exceptional
circumstances, minimization procedures are ordered,
that the proposed minimization procedures meet the
definition of minimization procedures under this title.
(2) An order issued under this section----
(A) shall specify--
(i) the identity, if known, of the
person who is the subject of the
investigation;
(ii) the identity, if known, of the
person to whom is leased or in whose
name is listed the telephone line or
other facility to which the pen
register or trap and trace device is to
be attached or applied; and
(iii) the attributes of the
communications to which the order
applies, such as the number or other
identifier, and, if known, the location
of the telephone line or other facility
to which the pen register or trap and
trace device is to be attached or
applied and, in the case of a trap and
trace device, the geographic limits of
the trap and trace order;
(B) shall direct that--
(i) upon request of the applicant,
the provider of a wire or electronic
communication service, landlord,
custodian, or other person shall
furnish any information, facilities, or
technical assistance necessary to
accomplish the installation and
operation of the pen register or trap
and trace device in such a manner as
will protect its secrecy and produce a
minimum amount of interference with the
services that such provider, landlord,
custodian, or other person is providing
the person concerned;
(ii) such provider, landlord,
custodian, or other person--
(I) shall not disclose the
existence of the investigation
or of the pen register or trap
and trace device to any person
unless or until ordered by the
court; and
(II) shall maintain, under
security procedures approved by
the Attorney General and the
Director of National
Intelligence pursuant to
section 1805(b)(2)(C) of this
title, any records concerning
the pen register or trap and
trace device or the aid
furnished; [and]
(iii) the applicant shall compensate
such provider, landlord, custodian, or
other person for reasonable expenses
incurred by such provider, landlord,
custodian, or other person in providing
such information, facilities, or
technical assistance; and
(iv) if applicable, the minimization
procedures be followed; and
(C) shall direct that, upon the request of
the applicant, the provider of a wire or
electronic communication service shall disclose
to the Federal officer using the pen register
or trap and trace device covered by the order--
(i) in the case of the customer or
subscriber using the service covered by
the order (for the period specified by
the order)--
(I) the name of the customer
or subscriber;
(II) the address of the
customer or subscriber;
(III) the telephone or
instrument number, or other
subscriber number or
identifier, of the customer or
subscriber, including any
temporarily assigned network
address or associated routing
or transmission information;
(IV) the length of the
provision of service by such
provider to the customer or
subscriber and the types of
services utilized by the
customer or subscriber;
(V) in the case of a provider
of local or long distance
telephone service, any local or
long distance telephone records
of the customer or subscriber;
(VI) if applicable, any
records reflecting period of
usage (or sessions) by the
customer or subscriber; and
(VII) any mechanisms and
sources of payment for such
service, including the number
of any credit card or bank
account utilized for payment
for such service; and
(ii) if available, with respect to
any customer or subscriber of incoming
or outgoing communications to or from
the service covered by the order--
(I) the name of such customer
or subscriber;
(II) the address of such
customer or subscriber;
(III) the telephone or
instrument number, or other
subscriber number or
identifier, of such customer or
subscriber, including any
temporarily assigned network
address or associated routing
or transmission information;
and
(IV) the length of the
provision of service by such
provider to such customer or
subscriber and the types of
services utilized by such
customer or subscriber.
(e) Time Limitation.--
(1) Except as provided in paragraph (2), an order
issued under this section shall authorize the
installation and use of a pen register or trap and
trace device for a period not to exceed 90 days.
Extensions of such an order may be granted, but only
upon an application for an order under this section and
upon the judicial finding required by subsection (d) of
this section. The period of extension shall be for a
period not to exceed 90 days.
(2) In the case of an application under subsection
(c) of this section where the applicant has certified
that the information likely to be obtained is foreign
intelligence information not concerning a United States
person, an order, or an extension of an order, under
this section may be for a period not to exceed one
year.
(f) Cause of Action Barred.--No cause of action shall lie
in any court against any provider of a wire or electronic
communication service, landlord, custodian, or other person
(including any officer, employee, agent, or other specified
person thereof) that furnishes any information, facilities, or
technical assistance under subsection (d) of this section in
accordance with the terms of an order issued under this
section.
(g) Furnishing of Results.--Unless otherwise ordered by the
judge, the results of a pen register or trap and trace device
shall be furnished at reasonable intervals during regular
business hours for the duration of the order to the authorized
Government official or officials.
(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 any applicable
minimization procedures by reviewing the circumstances under
which information concerning United States persons was retained
or disseminated.
SEC. 1843. AUTHORIZATION DURING EMERGENCIES.
(a) Requirements for Authorization.--Notwithstanding any
other provision of this subchapter, when the Attorney General
makes a determination described in subsection (b) of this
section, the Attorney General may authorize the installation
and use of a pen register or trap and trace device on an
emergency basis to gather foreign intelligence information not
concerning a United States person or information 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 if--
(1) a judge referred to in section 1842(b) of this
title is informed by the Attorney General or his
designee at the time of such authorization that the
decision has been made to install and use the pen
register or trap and trace device, as the case may be,
on an emergency basis; and
(2) an application in accordance with section 1842 of
this title is made to such judge as soon as
practicable, but not more than 7 days, after the
Attorney General authorizes the installation and use of
the pen register or trap and trace device, as the case
may be, under this section.
(b) Determination of Emergency and Factual Basis.--A
determination under this subsection is a reasonable
determination by the Attorney General that--
(1) an emergency requires the installation and use of
a pen register or trap and trace device to obtain
foreign intelligence information not concerning a
United States person or information 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 before an order authorizing the
installation and use of the pen register or trap and
trace device, as the case may be, can with due
diligence be obtained under section 1842 of this title;
and
(2) the factual basis for issuance of an order under
such section 1842 of this title to approve the
installation and use of the pen register or trap and
trace device, as the case may be, exists.
(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.
(d)[(c)] Effect of Absence of Order.--
(1) In the absence of an order applied for under
subsection (a)(2) of this section approving the
installation and use of a pen register or trap and
trace device authorized under this section, the
installation and use of the pen register or trap and
trace device, as the case may be, shall terminate at
the earlier of--
(A) when the information sought is obtained;
(B) when the application for the order is
denied under section 1842 of this title; or
(C) 7 days after the time of the
authorization by the Attorney General.
(2) In the event that an application for an order
applied for under subsection (a)(2) of this section is
denied, or in any other case where the installation and
use of a pen register or trap and trace device under
this section is terminated and no order under section
1842 of this title is issued approving the installation
and use of the pen register or trap and trace device,
as the case may be, no information obtained or evidence
derived from the use of the pen register or trap and
trace device, as the case may be, shall be received in
evidence or otherwise disclosed in any trial, hearing,
or other proceeding in or before any court, grand jury,
department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or political subdivision thereof, and
no information concerning any United States person
acquired from the use of the pen register or trap and
trace device, as the case may be, shall subsequently be
used or disclosed in any other manner by Federal
officers or employees without the consent of such
person, except with the approval of the Attorney
General if the information indicates a threat of death
or serious bodily harm to any person.
SEC. 1845. USE OF INFORMATION.
(a) In General.--
(1) Information acquired from the use of a pen
register or trap and trace device installed pursuant to
this subchapter 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]
minimization procedures required under this title.
(2) No information acquired from a pen register or
trap and trace device installed and used pursuant to
this subchapter may be used or disclosed by Federal
officers or employees except for lawful purposes.
* * * * * * *
CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE
Subchapter IV--Access to Certain Business Records and Other Tangible
Things for Foreign Intelligence Purposes
SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS AND OTHER TANGIBLE THINGS
FOR FOREIGN INTELLIGENCE AND INTERNATIONAL
TERRORISM INVESTIGATIONS.
(a)(1) Subject to paragraph (3), the Director of the
Federal Bureau of Investigation or a designee of the Director
(whose rank shall be no lower than Assistant Special Agent in
Charge) may make an application for an order requiring the
production of any tangible things (including books, records,
papers, documents, and other items) for an 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
to the Constitution.
(2) An investigation conducted under this section shall--
(A) be conducted under guidelines approved by the
Attorney General under Executive Order 12333 (or a
successor order); and
(B) not be conducted of a United States person solely
upon the basis of activities protected by the first
amendment to the Constitution of the United States.
(3) In the case of an application for an order requiring
the production of 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,
the Director of the Federal Bureau of Investigation may
delegate the authority to make such application to either the
Deputy Director of the Federal Bureau of Investigation or the
Executive Assistant Director for National Security (or any
successor position). The Deputy Director or the Executive
Assistant Director may not further delegate such authority.
(b) Each application under this Section--
(1) shall be made to--
(A) a judge of the court established by
section 1803(a) of this title; or
(B) a United States Magistrate Judge under
chapter 43 of Title 28, who is publicly
designated by the Chief Justice of the United
States to have the power to hear applications
and grant orders for the production of tangible
things under this section on behalf of a judge
of that court; and
(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) of this
section to obtain foreign intelligence
information not concerning a United States
person or to protect against international
terrorism or clandestine intelligence
activities; [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]
[(B) an enumeration of the minimization
procedures adopted by the Attorney General
under subsection (g) of this section 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.]
(B) if the records sought are the circulation
records or patron lists of a library (as
defined in section 213(1) of the Library
Services and Technology Act (20 U.S.C.
9122(1))), a statement of 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; and
(C) a statement of proposed minimization
procedures.
(c)(1) Upon an application made pursuant to this section,
if the judge finds that the application meets the requirements
of subsections (a) and (b) and that the proposed minimization
procedures meet the definition of minimization procedures under
subsection (g) of this section, the judge shall enter an ex
parte order as requested, or as modified, approving the release
of tangible things. [Such order shall direct that minimization
procedures adopted pursuant to subsection (g) of this section
be followed.]
(2) An order under this subsection--
(A) shall describe the tangible things that are
ordered to be produced with sufficient particularity to
permit them to be fairly identified;
(B) shall include the date on which the tangible
things must be provided, which shall allow a reasonable
period of time within which the tangible things can be
assembled and made available;
(C) shall provide clear and conspicuous notice of the
principles and procedures described in subsection (d)
of this section;
(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]
(E) shall not disclose that such order is issued for
purposes of an investigation described in subsection
(a) of this section[.]; and
(F) shall direct that the minimization procedures be
followed.
(d)(1) No person shall disclose to any other person that
the Federal bureau of investigation has sought or obtained
tangible things pursuant to an order under this section, other
than to--
(A) those persons to whom disclosure is necessary to
comply with such order;
(B) an attorney to obtain legal advice or assistance
with respect to the production of things in response to
the order; or
(C) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
(2)(A) A person to whom disclosure is made pursuant to
paragraph (1) shall be subject to the nondisclosure
requirements applicable to a person to whom an order is
directed under this section in the same manner as such person.
(B) Any person who discloses to a person described in
subparagraph (A), (B), or (C) of paragraph (1) that the Federal
Bureau of Investigation has sought or obtained tangible things
pursuant to an order under this section shall notify such
person of the nondisclosure requirements of this subsection.
(C) 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 subparagraph (A)
or (C) of paragraph (1) 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.
(e) A person who, in good faith, produces tangible things
under an order pursuant to this section shall not be liable to
any other person for such production. Such production shall not
be deemed to constitute a waiver of any privilege in any other
proceeding or context.
(f)(1) In this subsection--
(A) the term ``production order'' means an order to
produce any tangible thing under this section; and
(B) the term ``nondisclosure order'' means an order
imposed under subsection (d) of this section.
(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 1803(e)(1) of this title. [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
1803(e)(1) of this title.]
(ii) The presiding judge shall immediately assign a
petition under clause (i) to 1 of the judges serving in the
pool established by section 1803(e)(1) of this title. 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 1803(e)(2) of this title.
(iii) The assigned judge shall promptly provide a written
statement for the record of the reasons for any determination
under this subsection. Upon the request of the Government, any
order setting aside a nondisclosure order shall be stayed
pending review pursuant to paragraph (3).
(B) A judge considering a petition to modify or set aside a
production order may grant such petition only if the judge
finds that such order does not meet the requirements of this
section or is otherwise unlawful. If the judge does not modify
or set aside the production order, the judge shall immediately
affirm such order, and order the recipient to comply therewith.
(C)(i) A judge considering a petition to modify or set
aside a nondisclosure order may grant such petition only if the
judge 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.
[(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.]
(ii)[(iii)] 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.
(D) Any production or nondisclosure order not explicitly
modified or set aside consistent with this subsection shall
remain in full effect.
(3) A petition for review of a decision under paragraph (2)
to affirm, modify, or set aside an order by the Government or
any person receiving such order shall be made to the court of
review established under section 1803(b) of this title, which
shall have jurisdiction to consider such petitions. The court
of review shall provide for the record a written statement of
the reasons for its decision and, on petition by the Government
or any person receiving such order for writ of certiorari, the
record shall be transmitted under seal to the Supreme Court of
the United States, which shall have jurisdiction to review such
decision.
(4) Judicial proceedings under this subsection shall be
concluded as expeditiously as possible. The record of
proceedings, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures established by the Chief Justice of the
United States, in consultation with the Attorney General and
the Director of National Intelligence.
(5) All petitions under this subsection shall be filed
under seal. In any proceedings under this subsection, the court
shall, upon request of the Government, review ex parte and in
camera any Government submission, or portions thereof, which
may include classified information.
(g) Minimization Procedures.--
(1) In general.--[Not later than 180 days after March
9, 2006, the Attorney General shall adopt specific
minimization procedures governing the retention and
dissemination by the Federal Bureau of Investigation of
any tangible things, or information therein, received
by the Federal Bureau of Investigation in response to
an order under this subchapter.] At or before the end
of the period of time for the production of tangible
things under an order approved under this section or at
any time after the production of tangible things under
an order approved under this section, a judge may
assess compliance with the minimization procedures by
reviewing the circumstances under which information
concerning United States persons was retained or
disseminated.
(2) Defined.--In this section, the term
``minimization procedures'' means--
(A) specific procedures that are reasonably
designed in light of the purpose and technique
of an order for the production of tangible
things, to minimize the retention, and prohibit
the dissemination, of nonpublicly available
information concerning unconsenting United
States persons consistent with the need of the
United States to obtain, produce, and
disseminate foreign intelligence information;
(B) procedures that require that nonpublicly
available information, which is not foreign
intelligence information, as defined in section
1801(e)(1) of this title, 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.
(h) Use of Information.--Information acquired from tangible
things received by the Federal Bureau of Investigation in
response to an order under this subchapter 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 minimization procedures
adopted pursuant to subsection (g) of this section. No
otherwise privileged information acquired from tangible things
received by the Federal Bureau of Investigation in accordance
with the provisions of this subchapter shall lose its
privileged character. No information acquired from tangible
things received by the Federal Bureau of Investigation in
response to an order under this subchapter may be used or
disclosed by Federal officers or employees except for lawful
purposes.
* * * * * * *
Subchapter V--Reporting Requirement
SEC. 1871. SEMIANNUAL REPORT OF THE ATTORNEY GENERAL.
(a) Report.--On a semiannual basis, the Attorney General
shall submit to the Permanent Select Committee on Intelligence
of the House of Representatives, the Select Committee on
Intelligence of the Senate, and the Committees on the Judiciary
of the House of Representatives and the Senate, in a manner
consistent with the protection of the national security, a
report setting forth with respect to the preceding 6-month
period--
(1) the aggregate number of persons targeted for
orders issued under this chapter, including a breakdown
of those targeted for--
(A) electronic surveillance under section
1805 of this title;
(B) physical searches under section 1824 of
this title;
(C) pen registers under section 1842 of this
title;
(D) access to records under section 1861 of
this title;
(E) acquisitions under section 1881b of this
title; and
(F) acquisitions under section 1881c of this
title;
(2) the number of individuals covered by an order
issued pursuant to section 1801(b)(1)(C) of this title;
(3) the number of times that the Attorney General has
authorized that information obtained under this chapter
may be used in a criminal proceeding or any information
derived therefrom may be used in a criminal proceeding;
(4) a summary of significant legal interpretations of
this chapter involving matters before the Foreign
Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review, including
interpretations presented in applications or pleadings
filed with the Foreign Intelligence Surveillance Court
or the Foreign Intelligence Surveillance Court of
Review by the Department of Justice; and
(5) copies of all decisions, orders, or opinions of
the Foreign Intelligence Surveillance Court or Foreign
Intelligence Surveillance Court of Review that include
significant construction or interpretation of the
provisions of this chapter.
(b) Public Report.--The Attorney General shall make
publicly available the portion of each report under subsection
(a) relating to paragraphs (1) and (2) of subsection (a).
(c)[(b)] Frequency.--The first report under this section
shall be submitted not later than 6 months after December 17,
2004. Subsequent reports under this section shall be submitted
semi-annually thereafter.
(d)[(c)] Submissions to Congress.--The Attorney General
shall submit to the committees of Congress referred to in
subsection (a)--
(1) a copy of any decision, order, or opinion issued
by the Foreign Intelligence Surveillance Court or the
Foreign Intelligence Surveillance Court of Review that
includes significant construction or interpretation of
any provision of this chapter, and any pleadings,
applications, or memoranda of law associated with such
decision, order, or opinion, not later than 45 days
after such decision, order, or opinion is issued; and
(2) a copy of each such decision, order, or opinion,
and any pleadings, applications, or memoranda of law
associated with such decision, order, or opinion, that
was issued during the 5-year period ending on July 10,
2008 and not previously submitted in a report under
subsection (a).
(e)[(d)] Protection of National Security.--The Attorney
General, in consultation with the Director of National
Intelligence, may authorize redactions of materials described
in subsection (d) [subsection (c)] 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.
(f)[(e)] Definitions.--In this section:
(1) Foreign intelligence surveillance court.--The
term ``Foreign Intelligence Surveillance Court'' means
the court established under section 1803(a) of this
title.
(2) Foreign intelligence surveillance court of
review.--The term ``Foreign Intelligence Surveillance
Court of Review'' means the court established under
section 1803(b) of this title.
* * * * * * *
USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005
P.L. 109-177 (H.R. 3199)
SEC. 102. USA PATRIOT ACT SUNSET PROVISIONS.
(a) In General.--Section 224 of the USA PATRIOT Act is
repealed.
(b) Sections 206 and 215 Sunset.--
(1) In general.--Effective December 31, [2009] 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.
(2) Exception.--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 such provisions
cease to have effect, such provisions shall continue in
effect.
* * * * * * *
SEC. 106A. AUDIT ON ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN
INTELLIGENCE PURPOSES.
(a) Audit.--The Inspector General of the Department of
Justice shall perform a comprehensive audit of the
effectiveness and use, including any improper or illegal use,
of the investigative authority provided to the Federal Bureau
of Investigation under title V of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861 et seq.).
(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 2011 [2006], including--
(A) whether the Federal Bureau of
Investigation requested that the Department of
Justice submit an application and the request
was not submitted to the court (including an
examination of the basis for not submitting the
application);
(B) whether the court granted, modified, or
denied the application (including an
examination of the basis for any modification
or denial);
(2) the justification for the failure of the Attorney
General to issue implementing procedures governing
requests for the production of tangible things under
such section in a timely fashion, including whether
such delay harmed national security;
(3) whether bureaucratic or procedural impediments to
the use of such requests for production prevent the
Federal Bureau of Investigation from taking full
advantage of the authorities provided under section 501
of such Act;
(4) any noteworthy facts or circumstances relating to
orders under such section, including any improper or
illegal use of the authority provided under such
section; and
(5) an examination of the effectiveness of such
section as an investigative tool, including--
(A) the categories of records obtained and
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;
(B) the manner in which such information is
collected, retained, analyzed, and disseminated
by the Federal Bureau of Investigation,
including any direct access to such information
(such as access to ``raw data'') provided to
any other Department, agency, or
instrumentality of Federal, State, local, or
tribal governments or any private sector
entity;
(C) with respect to each of calendar years
2006 through 2011 [calendar year 2006], 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;
(D) whether, and how often, the Federal
Bureau of Investigation utilized information
acquired pursuant to an order under section 501
of such Act to produce an analytical
intelligence product for distribution within
the Federal Bureau of Investigation, to the
intelligence community (as such term is 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
(E) whether, and how often, the Federal
Bureau of Investigation provided such
information to law enforcement authorities for
use in criminal proceedings.
(c) Submission Dates.--
(1) Prior years.--Not later than one year after the
date of the enactment of this Act, or upon completion
of the audit under this section for calendar years
2002, 2003, and 2004, whichever is earlier, 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 2002, 2003, and
2004.
(2) Calendar years 2005 and 2006.--Not later than
December 31, 2007, or upon completion of the audit
under this section for calendar years 2005 and 2006,
whichever is earlier, 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 2005 and 2006.
(3) Calendar years 2007, 2008, and 2009.--Not later
than June 30, 2011, 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, 2008, and 2009.
(4) Calendar years 2010 and 2011.--Not later than
December 31, 2012, 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 2010 and 2011.
(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), (c)(2),
(c)(3), or (c)(4) [or (c)(2)], 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), (c)(2), (c)(3), or (c)(4) [and (c)(2)] as the
Attorney General or the Director of National
Intelligence may consider necessary.
(e) Unclassified Form.--The reports submitted under
subsections (c)(1), (c)(2), (c)(3), or (c)(4) [and (c)(2)] 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.
(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];
(B) section 1114 of the Right to Financial
Privacy Act (12 U.S.C. 3414) (to obtain
financial institution customer records);
(C) section 802 of the National Security Act
of 1947 (50 U.S.C. 436) (to obtain financial
information, records, and consumer reports);
(D) section 626 of the Fair Credit Reporting
Act (15 U.S.C. 1681u) (to obtain certain
financial information and consumer reports);
and
(E) section 627 of the Fair Credit Reporting
Act (15 U.S.C. 1681v) (to obtain credit agency
consumer records for counterterrorism
investigations).
(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).
(3)[(2)] Unclassified form.--The report under this
section shall be submitted in unclassified form.
* * * * * * *
SEC. 119. AUDIT OF USE OF NATIONAL SECURITY LETTERS.
(a) Audit.--The Inspector General of the Department of
Justice shall perform an audit of the effectiveness and use,
including any improper or illegal use, of national security
letters issued by the Department of Justice.
(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 2011 [2006];
(2) a description of any noteworthy facts or
circumstances relating to such use, including any
improper or illegal use of such authority; and
(3) an examination of the effectiveness of national
security letters as an investigative tool, including--
(A) the importance of the information
acquired by the Department of Justice to the
intelligence activities of the Department of
Justice or to any other department or agency of
the Federal Government;
(B) the manner in which such information is
collected, retained, analyzed, and disseminated
by the Department of Justice, including any
direct access to such information (such as
access to ``raw data'') provided to any other
department, agency, or instrumentality of
Federal, State, local, or tribal governments or
any private sector entity;
(C) whether, and how often, the Department of
Justice utilized such information to produce an
analytical intelligence product for
distribution within the Department of Justice,
to the intelligence community (as such term is
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;
(D) whether, and how often, the Department of
Justice provided such information to law
enforcement authorities for use in criminal
proceedings;
(E) with respect to national security letters
issued following the date of the enactment of
this Act, an examination of the number of
occasions in which the Department of Justice,
or an officer or employee of the Department of
Justice, issued a national security letter
without the certification necessary to require
the recipient of such letter to comply with the
nondisclosure and confidentiality requirements
potentially applicable under law; and
(F) the types of electronic communications
and transactional information obtained through
requests for information under section 2709 of
title 18, United States Code, including the
types of dialing, routing, addressing, or
signaling information obtained, and the
procedures the Department of Justice uses if
content information is obtained through the use
of such authority.
(c) Submission Dates.--
(1) Prior years.--Not later than one year after the
date of the enactment of this Act, or upon completion
of the audit under this section for calendar years 2003
and 2004, whichever is earlier, 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 subsection for calendar years 2003 and 2004.
(2) Calendar years 2005 and 2006.--Not later than
December 31, 2007, or upon completion of the audit
under this subsection for calendar years 2005 and 2006,
whichever is earlier, 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 subsection
for calendar years 2005 and 2006.
(3) Calendar years 2007, 2008, and 2009.--Not later
than June 30, 2011, 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, 2008, and 2009.
(4) Calendar years 2010 and 2011.--Not later than
December 31, 2012, 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 2010 and 2011.
(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), (c)(2),
(c)(3), or (c)(4) [or (c)(2)], 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), (c)(2), (c)(3), or (c)(4) [or (c)(2)] as the
Attorney General or the Director of National
Intelligence may consider necessary.
(e) Unclassified Form.--The reports submitted under
subsection (c)(1), (c)(2), (c)(3), or (c)(4) [or (c)(2)] and
any comments included under subsection (d)(2) shall be in
unclassified form, but may include a classified annex.
(f) Minimization Procedures Feasibility.--Not later than
February 1, 2007, or upon completion of review of the report
submitted under subsection (c)(1), whichever is earlier, the
Attorney General and the Director of National Intelligence
shall jointly 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 on the
feasibility of applying minimization procedures in the context
of national security letters to ensure the protection of the
constitutional rights of United States persons.
(g) National Security Letter Defined.--In this section, 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 802 of the National Security Act of 1947
(50 U.S.C. 436) (to obtain financial information,
records, and consumer reports).
(4) Section 626 of the Fair Credit Reporting Act (15
U.S.C. 1681u) (to obtain certain financial information
and consumer reports).
(5) Section 627 of the Fair Credit Reporting Act (15
U.S.C. 1681v) (to obtain credit agency consumer records
for counterterrorism investigations).
* * * * * * *
INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
PL 108-458 (118 Stat. 3742)
TITLE VI--TERRORISM PREVENTION
Subtitle A--Individual Terrorists as Agents of Foreign Powers
SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.
* * * * * * *
[(b) Sunset.--The amendment made by subsection (a) shall be
subject to the sunset provision in section 224 of Public Law
107-56 (115 Stat. 295), including the exception provided in
subsection (b) of such section 224.]
(b) Sunset.--
(1) Repeal.--Subparagraph (C) of section 101(b)(1) of
the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(1)), as added by subsection (a), is
repealed effective December 31, 2013.
(2) Transition provision.--Notwithstanding paragraph
(1), subparagraph (C) of section 101(b)(1) of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(1)) shall continue to apply on and after
December 31, 2013, with respect to any particular
foreign intelligence investigation or with respect to
any particular offense or particular offense that began
or occurred before December 31, 2013.
* * * * * * *
New Provisions Under USA PATRIOT Act Sunset Extension Act of 2009 (S.
1692)
SEC. 2. SUNSETS.
* * * * * * *
(c) National Security Letters.--
(1) Repeal.--Effective on December 31, 2013.--
(A) section 2709 of title 18, United States
Code, is amended to read as such provision read
on October 25, 2001;
(B) section 1114(a)(5) of the Right to
Financial Privacy Act of 1978 (12 U.S.C.
3414(a)(5)) is amended to read as such
provision read on October 25, 2001;
(C) subsections (a) and (b) of section 626 of
the Fair Credit Reporting Act (15 U.S.C. 1681u)
are amended to read as subsections (a) and (b),
respectively, of section 624 of such Act read
on October 25, 2001;
(D) section 627 of the Fair Credit Reporting
Act (15 U.S.C. 1681v) is repealed; and
(E) section 802 of the National Security Act
of 1947 (50 U.S.C. 436) is amended to read as
such provision read on October 25, 2001.
(2) Transition provision.--Notwithstanding paragraph
(1), the provisions of law referred to in paragraph
(1), as in effect on December 30, 2013, shall continue
to apply on and after December 31, 2013, with respect
to any particular foreign intelligence investigation or
with respect to any particular offense or potential
offense that began or occurred before December 31,
2013.
(3) Technical and conforming amendments.--Effective
December 31, 2013--
(A) section 3511 of title 18, United States
Code, is amended--
(i) in subsections (a), (c), and (d),
by striking ``or 627(a)'' each place it
appears; and
(ii) in subsection (b)(1)(A), as
amended by section 6(b) of this Act, by
striking ``section 626 or 627 of the
Fair Credit Reporting Act (15 U.S.C.
1681u and 1681v)'' and inserting
``section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u)'';
(B) section 118(c) of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (18
U.S.C. 3511 note) is amended--
(i) in subparagraph (C), by adding
``and'' at the end;
(ii) in subparagraph (D), by striking
``; and'' and inserting a period; and
(iii) by striking subparagraph (E);
and
(C) the table of sections for the Fair Credit
Reporting Act (15 U.S.C. 1681 et seq.) is
amended by striking the item relating to
section 627.
* * * * * * *
SEC. 10. AUDITS.
* * * * * * *
(c) Pen Registers and Trap and Trace Devices.--
(1) Audits.--The Inspector General of the Department
of Justice shall perform comprehensive audits of the
effectiveness and use, including any improper or
illegal use, of pen registers and trap and trace
devices under title IV of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1841 et seq.)
during the period beginning on January 1, 2007 and
ending on December 31, 2011.
(2) Requirements.--The audits required under
paragraph (1) shall include--
(A) an examination of the use of pen
registers and trap and trace devices under
title IV of the Foreign Intelligence
Surveillance Act of 1978 for calendar years
2007 through 2011;
(B) an examination of the installation and
use of a pen register or trap and trace device
on emergency bases under section 403 of the
Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1843);
(C) 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
(D) 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 and 2011, 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 (as
defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978
(50 U.S.C. 1801));
(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 June 30,
2011, 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 through 2009.
(B) Calendar years 2010 and 2011.--Not later
than December 21, 2012, 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 2010 and 2011.
(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. 12. 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
national security letter 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).
