[Congressional Record Volume 161, Number 85 (Sunday, May 31, 2015)]
[Senate]
[Pages S3324-S3329]
USA FREEDOM ACT OF 2015--MOTION TO PROCEED
The PRESIDENT pro tempore. Under the previous order, the Senate will
resume consideration of the motion to proceed to H.R. 2048, which the
clerk will report.
The senior assistant legislative clerk read as follows:
Motion to proceed to Calendar No. 87, H.R. 2048, a bill to
reform the authorities of the Federal Government to require
the production of certain business records, conduct
electronic surveillance, use pen registers and trap and trace
devices, and use other forms of information gathering for
foreign intelligence, counterterrorism, and criminal
purposes, and for other purposes.
The PRESIDENT pro tempore. The minority leader.
Mr. LEAHY. I ask, through the Chair, if the Democratic leader will
yield to me for a comment.
Mr. REID. Mr. President, I am happy to yield to the Senator for a
comment.
Mr. LEAHY. Mr. President, I was struck by what the Democratic leader
said. He laid out the history of this. We are here in a manufactured,
unnecessary crisis. It is a manufactured, unnecessary crisis.
Last year, by an overwhelming majority, the Senate voted to make
improvements to the PATRIOT Act. The legislation made reforms to the
provisions that have now been declared illegal. We did that but could
not get past a filibuster. We had 58 votes. Normally, you think of 51
votes being enough to pass a bill. The Democratic leader will recall
how hard he worked to try to get that bill through. The Republican
leader said: No, we will wait until next year. Well, next year came. We
have wasted so much time. There has not been a single public hearing.
There has not been any action on an alternative to the USA FREEDOM Act.
But, I say to my friend from Nevada, he is absolutely right when he
says the House passed the USA FREEDOM Act by a 4 to 1 margin. It was an
overwhelming vote, Republicans and Democrats together, to get rid of
the illegal parts of the PATRIOT Act, to pass an improvement. We ought
to just take up the USA FREEDOM Act and pass it.
If we were allowed to have a straight up-or-down vote in this body, I
guarantee you, a majority of Senators--both parties--would vote for it.
So I just wanted to say that while the leader was on the floor.
I now ask for recognition in my own right.
[[Page S3325]]
The PRESIDENT pro tempore. The Senator from Vermont.
Mr. LEAHY. Mr. President, before I begin my comments on the USA
FREEDOM Act, I am going to speak for a moment on a personal matter.
[...]
Mr. President, on the matter the distinguished Democratic leader was
talking about, the USA FREEDOM Act, let's just take it up and pass it.
Opponents of this bipartisan, commonsense legislation have run out of
excuses. I see this as a manufactured crisis, and it is. This matter
should have been taken up and voted on up or down a month ago. There is
only one viable and responsible path remaining: Pass the USA FREEDOM
Act that passed overwhelmingly in the House of Representatives. Pass it
and send it to the President's desk and he will sign it. If we do not
pass it, then those parts of the PATRIOT Act that most of us agree on
are going to expire at midnight.
The irony of it is that the USA FREEDOM Act of 2015 is a carefully
crafted, bipartisan compromise that both protects Americans' privacy
and keeps this country safe. Before they were talking about, we are
going to keep the country safe but Americans' privacy--not so much.
This is a bill that does both.
The legislation would end the NSA's bulk collection of Americans'
phone records. It adds significant new reforms to limit government
surveillance. It increases transparency and also promotes greater
accountability and oversight--something the original PATRIOT Act did
not have.
The bill is the product of countless hours of painstaking
negotiations with key Members--both Republicans and Democrats--in the
House and the Senate, men and women I respect so much because they want
to do what is best for the country. We have negotiated with the NSA,
the FBI, the Justice Department, privacy and civil liberties groups,
the technology industry, and other key stakeholders. We brought
everybody together. When we began, we wondered if that would be
possible. We did it. That is why the USA FREEDOM Act has such strong
support, including from groups as diverse as the National Rifle
Association and the Center for American Progress.
This broad consensus is what we saw by the overwhelming support it
received in the House. They passed the USA FREEDOM Act by a vote of 338
to 88. Some in this country say that no branch of government could have
a vote that strong to say the Sun rises in the east. Certainly there
has been no major piece of legislation in years where we have seen a
vote such as that--338 to 88.
But now a minority in the Senate has now twice blocked the USA
FREEDOM Act from even getting a debate on the Senate floor. We were
sent here not to vote maybe but to vote yes or no.
Last November, even though we had had all kinds of committee hearings
on this, we heard complaints that there had not been enough of a
committee process on the bill and that the Senate should wait to
address Section 215 under the new Republican leadership. So the
Republican leader led a successful filibuster against a bill which
still had a majority of Members in this body voting for it. But what
has happened in this Congress? Not a single public hearing on this
issue; no committee process. And then last weekend, the Senate was
blocked from even debating the House-passed bill and considering
amendments.
Opponents of reform have failed to introduce any legislative
alternative to the bipartisan USA FREEDOM Act, the bill which reforms
many problems of the PATRIOT Act. They have come up with no legislative
alternative other than a clean extension, which we know has no chance
of becoming law. Of course, it makes no difference because at midnight
it stops being the law.
The time for excuses and inaction has passed. The American people and
the intelligence community professionals who strive to protect them
deserve better.
We have a few hours remaining to work things out and pass the USA
FREEDOM Act, but there is no room for error. There is very little time.
Again, I said it is a manufactured crisis. The deadline to act is
midnight tonight. The House will not return to the Capitol until
tomorrow, after the deadline has passed. We could talk about passing a
100-year extension if we wanted; it makes no difference because the
time will have passed. So if the Senate does not pass the House-passed
USA FREEDOM Act or if we amend it in any way, the authorities are going
to expire.
I have said repeatedly--and my cosponsor of the USA FREEDOM Act,
Senator Lee, agrees with me--that we would like to have a debate on our
bill and consider amendments. Because opponents of reform have run out
the clock and jammed the Senate, we are not left with very much time.
Let's get this done today. If we pass the USA FREEDOM Act, the
President could sign it tonight and the intelligence community could
move forward
[[Page S3326]]
with the certainty it needs to protect the American people.
Some may argue that if you had a short-term extension--which, of
course, we do not have--they have said: Well, maybe we could work out
some kind of a compromise bill. But let there be no misunderstanding:
The USA FREEDOM Act is a solid, carefully negotiated compromise. For
all those Senators on either side of the aisle who have not spent the
hours and hours and hours, as Senator Lee and I and our staffs have
spent, maybe they do not know the work that went into this--again, how
you get groups from the left to the right supporting it.
It would be irresponsible to kick the can down the road once again,
relying on the false hope that the House will agree to pass a short-
term extension--something they said they will not do--and that we will
somehow be able to agree on a half-baked alternative that has yet to be
introduced in either body and most assuredly would not pass the House.
So do not be fooled or tempted by the promise of a short-term
extension. That would guarantee nothing. Well, wait a minute. I take
that back. Passing a short-term extension does guarantee something: It
guarantees the expiration of these authorities at midnight tonight. It
guarantees more uncertainty, more litigation, more risk for the
intelligence community, and a repeat of the chaotic brinksmanship later
on down the road with another manufactured crisis.
I know there are some who worry that the bill does not go far enough
when it comes to reform. Well, then where were they in coming up with a
better idea? If this passes, the USA FREEDOM Act would be the most
significant set of reforms to government surveillance since the PATRIOT
Act was enacted. The reason we are here to even debate it is that then-
majority leader Dick Armey in the House and I put in sunset provisions.
So we will have to show responsibility and vote, as the House did by a
4-to-1 margin.
Our bill--Senator Lee's and my bill--would not just end the NSA's
bulk collection under Section 215, it would add new transparency and
oversight reforms to other surveillance authorities, and it would be a
solid foundation upon which we could build our future reform efforts.
I have been in the Senate for more than 40 years. I have learned that
when there is a chance to make real progress, we ought to seize it. But
I also know we cannot let this be the end of our fight for greater
privacy protections, transparency, and accountability. I remain
committed to fighting that fight on behalf of Vermonters and all
Americans.
So the choices before us this evening are clear: Either let these
authorities expire completely or pass the USA FREEDOM Act. There is no
more time for political maneuvering or fearmongering or scare tactics.
It is time for us to do our jobs--to debate and then to vote. Don't
duck the vote. Vote up or down on the bill the House gave us. Stand up
and be counted either for or against it. As Senators, let's have the
courage to do that.
The USA FREEDOM Act is a reasonable, responsible way forward, and we
should pass it tonight. But don't duck behind not doing anything and
pretend that is a solution. I don't think there is a single American,
Republican or Democrat, who would believe that was a responsible
solution.
Mr. President, I yield the floor.
Ms. MIKULSKI. Mr. President, I am back here during an unprecedented
Sunday session hoping we can avoid a totally unnecessary disaster
tonight; hoping we will do what is right for the country: Pass the USA
FREEDOM Act today. Right now.
I will let others speak to the merits of the USA FREEDOM Act. It is
our best opportunity to protect the Nation while balancing between
privacy and constitutional surveillance.
I do support reforming the Patriot Act, but I do not support
unilateral disarmament of our Nation's need to know what bad guys with
predatory intent are planning against the United States of America.
But my comments today are not about standing up for the USA FREEDOM
Act.
I am here to stand up for the men and women working for the NSA, FBI,
and other intelligence agencies essential to protecting our country
against terrorist attacks--whether it is a ``lone wolf'' or state
sponsored. These dedicated, patriotic intelligence professionals want
to operate under rule of law that is constitutional, legal, and
authorized.
They are ready to do their jobs, but Congress needs to do our job and
pass a bill that is constitutional, legal, and authorized.
Ever since Edward Snowden made his allegations, the men and women of
our intelligence agencies have been vilified as if they were the enemy.
They thought they were doing their jobs protecting us against the
enemy.
Let me tell you--the men and women of the NSA, FBI, and our other
intelligence agencies are patriots who have been wrongly vilified by
those who don't bother to inform themselves about our national security
structures and the vital functions they perform.
Now a special word about the NSA, which is headquartered in my home
State of Maryland. The 30,000 men and women in the NSA serve in
silence--without public accolades. They protect us from cyber attacks.
They protect us against terrorist attacks. They support our
warfighters. They are Ph.D.'s and scientists. They are linguists, cyber
geeks, and whiz kids--the treasured human capital of this Nation.
Remember that section 215 is such a small aspect of what the NSA,
FBI, and other intelligence agencies do as they stand sentry in cyber
space stopping attacks. People act like that is all NSA does. They
haven't even bothered to educate themselves as to legality and
constitutionality.
Congress passed the Patriot Act. President George W. Bush told us it
was constitutional. We need good intelligence. In a world of ISIL,
Nusra Front, and al Qaeda, the NSA is our front line of defense and the
people of NSA make up that front line.
There is no evidence of abuse by NSA employees. The men and women of
NSA have adhered to the law. They have submitted to oversight, audits,
checks and balances, and reviews from Congress and the courts.
The employees of NSA know that everything has to be constitutional,
legal, and authorized. They thought they were implementing the law, but
some in the media and even some in this body have made them feel like
they were wrongdoers. I find this infuriating and insulting. Morale has
been devastated at NSA. Families have been harassed for working at the
NSA and their kids are bullied at school.
They have also been devastated by actions of their own government.
First, by sequester--then, by the government shutdown. Now, by
Congress's failure to reform national security authorities that help
them keep our country safe.
It is wrong. I want people to remember that tonight as we discuss
important reforms. Let us not let them down, once again, with our own
failure to act.
Mrs. FEINSTEIN. Mr. President, it is greatly disappointing that the
Senate is in session today to reconsider a vote we took before the
Memorial Day recess to extend the three expiring provisions of the
Foreign Intelligence Surveillance Act.
Instead of passing the USA FREEDOM Act a week ago and sending it to
the President, we are now poised to take the measure up this coming
week, after the FISA authorities have expired. The result is that our
intelligence agencies will lose important tools to protect against
terrorist attacks. This is a self-inflicted harm, and one that was
totally unnecessary.
As I did a week ago, I will vote to invoke cloture on the motion to
proceed to the USA FREEDOM Act, and I intend to vote for the
legislation through the upcoming procedural votes. The bill is not
perfect, but it extends the business records, lone wolf, and roving
wiretap provisions and it institutes some important reforms to FISA.
Unfortunately, what we have on the floor of the Senate tonight is
political gamesmanship at its worst. We should have had this debate
weeks or months ago, not up against the deadline. Failing that, the
majority should not have defeated this motion last week when it is
prepared today to pass it.
We should skip the unnecessary delay of voting separately on the
motion to proceed, cloture on the bill, and on the bill itself. Clearly
there are 60 votes in this chamber to pass the USA FREEDOM Act, whether
we do it today or if we do it next week.
So the question comes: why not pass this bill today, reform the
business records provision of FISA, and keep important intelligence
authorities in effect? Unfortunately, the answer is that one Senator is
holding this process hostage for his own political benefit. It is a
travesty, and it is unconscionable.
We remain a nation under threat of terrorism. Our allies remain under
threat of terrorism.
This is not hypothetical. The Islamic State in Iraq and the Levant--
ISIL--is seeking to recruit individuals to conduct attacks against the
United States. Tens of thousands of foreign fighters have entered Iraq
and Syria to join ISIL. There are hundreds of people inside the United
States right now that ISIL is seeking to inspire, direct, and assist in
carrying out an attack.
Al Qaeda in the Arabian Peninsula--AQAP--is developing non-metallic,
undetectable bombs for use on U.S. airliners and is teaching people how
to make such devices themselves. These groups are competing to be worst
of the worst in international terrorism and they are coming after us.
We aren't sending thousands of troops to confront ISIL in Iraq and
Syria or to stop AQAP in Yemen. We aren't going to diminish their
threats through partnership with local governments.
The only way we are going to stop attacks against the United States
and our people is by collecting good intelligence. To me, that means we
need to do everything lawful and effective in intelligence to identify
and thwart those attacks.
The roving wiretap provision is important. It says that the FBI
doesn't have to stop surveillance against a terrorist or a foreign spy
when he buys a new cell phone or changes his email account. Having to
do so in today's world would be ridiculous.
The ``lone wolf'' provision is important. To be clear--it hasn't been
used. But to be equally clear, never before have we faced the exact
threat that this provision was written to address: the threat of an
individual, inside this country, plotting to kill Americans without
traveling abroad and training with a terrorist group first.
The business records provision is important. It includes both routine
requests for records--hotel bills, car rentals, travel information--
that are regular parts of law enforcement and national security
investigations. It also authorizes the NSA's phone metadata program.
Under this provision, the NSA gets information about phone calls to
include the numbers on either end of the line, the time, and the
duration of the call. It does not include the words that are spoken as
part of the phone conversation, the identities of the people involved,
or their location.
What it does is help the Intelligence Community know more about
people for whom there is a ``reasonable articulable suspicion'' of
being tied to terrorist groups. If there is a terrorist in Syria
talking to Americans at home, we want to know that. If a phone number,
for example, in Garland, TX, is in touch with an ISIL operations chief,
we need to know. That information allows the FBI to go to a court for a
probable cause warrant to conduct electronic and physical surveillance
of a suspect.
This program is conducted under strict oversight and operational
limitations. The number of people at NSA with access to the data is
small--it was 22 in 2013. They have to get approval each time they do a
query of the phone records; today that approval comes from the FISA
Court. The query only returns information on what numbers were called
by, and called, the phone number in question, and then a second hop
from that number. There were 288 phone numbers approved for queries in
2012, and those queries led to 12 probable cause warrants by the FBI.
The program is overseen within the NSA by multiple officials,
including the inspector general and the privacy and civil liberties
officer. It is overseen by the Department of Justice, which reviews
every single query, and by the Office of the Director of National
Intelligence. It is overseen by the Intelligence and Judiciary
Committees of the House and the Senate, and it is overseen for
compliance purposes by the FISA Court.
So these are important tools that, because of Senate inaction and
recalcitrance, will expire tonight. As a result, we make ourselves more
vulnerable.
I very much regret this situation that the Senate has created, and I
urge my colleagues to vote for cloture and to quickly enact the USA
FREEDOM Act.
The PRESIDING OFFICER (Mr. Grassley). The Senator from Indiana is
recognized.
Mr. COATS. Mr. President, I also regret that we are where we are.
[...]
Mr. President, I am a little surprised to hear the Senator from
Vermont talking about how the Senate ought to just completely concede
to whatever the House sends to the Senate. The fact is that we had a
very significant discussion and debate on this issue all week before
the Memorial Day break and it had gone on for months, if not years,
before in the Intelligence Committee on which I serve and among Members
generally.
This is one of the most important pieces of legislation we will have
to deal with. It was drafted and spawned as a result of 9/11 when the
American people said: Are we doing everything we possibly can to
prevent something such as this from happening again?
Congress debated extensively the PATRIOT Act and the tools the
intelligence community suggested we give them the authority to use to
try to prevent that catastrophe from ever happening again and doing
everything we could to prevent terrorist attacks. Along the way, there
have been modifications, and there have been changes.
Recently, there has been significant national debate over whether one
of these many essential tools that help us gather the intelligence to
try to prevent and to understand the nature of the threat should be
used. There clearly is a difference of opinion among Members here in
the Senate and even in the House of Representatives. Yes, the Senate
did pass a reform measure that I think is flawed, personally. I think
it diminishes--it doesn't eliminate, but it diminishes and some even
believe it eliminates the usefulness of this particular program. We
went back and forth on that for a significant part of the week before
we adjourned.
The Senator from Vermont comes to the floor and basically says: Look,
the House passed this; so therefore we ought to just go ahead and pass
it. He said there was no other alternative presented, but that is not
the case. We had a procedural vote on the House bill, and we had a vote
on the bill to extend this program, so we can come spend a little more
time to try to figure out how best to deal with this issue. Neither of
those passed, indicating that the Senate did not have the same
consensus the House reached, which was a partial consensus. That is
what the Senate is all about. We are not just a rubberstamp for the
House.
What is really ironic is the fact that for 4 years, under Democratic
leadership of this Senate, the House, under Republican leadership, sent
us hundreds of pieces of legislation, and if we followed the admonition
to us of the Senator from Vermont, we would have just rubberstamped
those. The House passed it, so why wouldn't we go forward? I don't
think that argument makes a lot of sense.
Senators are here to address issues in the U.S. Senate. Are there
many bills the House passes that I agree with? Yes. My party controls
the House. Are there bills here that I don't agree with that they have
passed? Yes. We, as Senators, use our prerogative in terms of where we
stand, and ultimately we take a vote and we either win or we lose.
Sometimes it coordinates with the House of Representatives and other
times it doesn't, so then we go to conference and we pass an
alternative. But to say there hasn't been debate relative to this
program in the House-passed bill is simply not true.
Unfortunately, there has been such a significant misrepresentation of
what this program is and what this program isn't, and that has caused a
lot of angst which we are trying to deal with. Much of the public--at
least some portion of the public--is convinced that the government is
listening to every phone
[[Page S3327]]
call they make. It has been said on this floor that they are listening
to all our phone calls, that they are collecting all kinds of data.
They know everything about us. That is the furthest from the point of
this program and the operation of this program that we can conceive of.
Yet, a portion of the public has been led to believe that Big
Government is in their bedroom, in their house, in their car, in their
phone, and tracks them wherever they go; that they are collecting
everything about people, including what they buy at Costco and the
movies people rent through Netflix. Private industry does collect that
kind of stuff, but it is not the government. It is not done under this
program.
As a member of the Intelligence Committee, I can tell my colleagues
that we have spent hundreds of hours dealing with this program to
ensure that it doesn't violate anyone's privacy. It has more oversight
through all three branches of government. The executive branch, the
judicial branch, and the legislative branch oversee this program. There
are six layers within NSA itself that it has to go through, that
attorneys have to look at, that legal experts have to look at before
they can even proceed to suspect and then take that suspicion to a
court to have a judge say: Yes, you might have something here.
It has been said and it is true that unless a person's phone number
is in communication with a foreign phone number that is at least
strongly suspected of belonging to a terrorist organization--and
ultimately the court has to make that decision--a member of Al Qaeda,
ISIS, or some group overseas that is attempting to do harm to the
United States--why is this particular phone number--not the name of the
person who owns the phone number--why is this particular phone number
being called by someone in Yemen or being called by what we strongly
suspect is a foreign operative through ISIS, Al Qaeda, Yemen, or other
points where we know terrorist activity is rampant?
There is a signal that comes up that matches phone numbers, and they
say: We better look into this. But before they can look into it, it has
to be vetted by a court. It has to be taken to a FISA Court or an
intelligence court and judged by that court as something viable to
pursue. At that point, it is similar to what a court would order if
there were a warrant to go and find more information to see whether
this suspicion actually is reality.
We read about it every day and we watch it on television--``Law and
Order'' and all the shows and so forth--about how law enforcement
suspects that this particular activity is a criminal organization or
this is a drug house or they have reason to believe the perpetrator of
the crime is this individual. They can't go raiding their house. They
can't go downloading information about them until they go to a court
and receive approval from a judge saying: Yes, here you are, here is
your warrant. You can go and check this out.
Well, this intelligence program is based on the same principle; that
is, nobody can collect any information on anybody unless that court
approves that operation. Then it is turned over to the FBI, and they
look to see if it is the real thing. It is a tool that has been of
importance and has been a contribution to our ability to address the
potential of terrorist threats and to thwart them before they happen.
It has always been used as a way of proving the negative; that is, no,
this is OK, we don't need to follow up on this.
The best example is the Boston bombing. When the Tsarnaev brothers'
phone was accessed and it was run against the numbers, there was some
suspicion that additional terrorist activity would take place in New
York. It was proven that was not the case because there were no
connections made. So it became a valuable tool in that regard. Instead
of shutting down New York, putting them on a high terrorist alert--
perhaps the Nation's largest economy in operation there--we were able
to quickly determine that wasn't the case.
In response to those who basically say this has never stopped a
terrorist attack, two things: No. 1, this is one of the many methods we
use to collect the threads of intelligence that come from different
sources to try to put together a mosaic or a puzzle as to whether this
is something we need to deal with and take seriously. It is a major
piece of that puzzle we obtain from the 215 program, which is the
collection of phone numbers. We do not collect the names of people who
own those numbers. It is the collection of what is called metadata. It
has been described as simply the same data that is on our telephone
bills that the Supreme Court has said is not a breach of the Fourth
Amendment. It is not privileged for privacy purposes. It shows the date
the call was made, the duration of the call, the number that was
called, and that is it. And those numbers are put into a system whereby
we can check against that a number that suspiciously is talking to a
foreign operative in a foreign country. That then automatically
triggers that you better look at this--it is kind of a ping--you better
look at this one. Nobody has access, at this point, to any content
related to the name of the individual until it reaches a level of
suspicion that is vetted through six layers of oversight and then is
sent to a court that looks at it to say: We agree with you or we don't
agree with you. And if we agree with you, then it is the FBI who is
alerted that they better look into this.
Now, there has never been a time since 9/11 when we have dealt with a
higher threshold than we currently are dealing with. You hear about it
every day. You read about it every day. ISIS has recruited more than
20,000, it is estimated--significantly more than that are those from 90
different foreign countries. It has made a direct threat toward the
United States and its citizens. It is sponsoring and encouraging
individuals to not only come over and train and join ISIS and then come
back here and wreak havoc on the American people; it is also inspiring
those, saying if you don't want to travel over here, just go out and
kill somebody. Join the jihad from afar. You can be a part of what we
are trying to accomplish simply by doing your own thing. We saw that
happen down in Texas. We will see that in other places as people are
inspired through ISIS, for whatever sick reason, to take up arms, to
cause destruction, and to randomly kill and wreak havoc on the American
public.
It has been offered that the House fix--the reform, which did have
bipartisan support and did pass the House without a lot of debate--is
the solution to this problem. Some agree it goes too far; some agree it
doesn't go far enough. But there are problems with that particular
FREEDOM Act, which the Senator from Vermont says is the golden grail
here and will solve all the problems.
It is clear, and it is the testimony we have received from numerous
officials in the counterterrorism business and in the intelligence
business, that there are issues with this so-called FREEDOM Act fix
that could render--well, No. 1, that do render the program less
effective and could render it totally inoperative.
The fact that the NSA has not yet been able to come up with a program
which would ensure that we could have the kind of collection we need in
the timeframe we need it--some of this is urgent, some of this is
pending, some of this is imminent, and it already goes through layers
that delay coming to a conclusion and this adds more.
Also, they have indicated the system is untested and exists in name
only. We don't know how the new program would be implemented and we
don't know how it would be operated. That is why many of us said: Look,
for whatever reason, yes, we are at this point, and, yes, it expires at
midnight. What we were trying to do before we left was get a short-term
extension. We were negotiating. We think it should have been for a
significant amount of time, until NSA could test out its program, but
we were willing to go much less than that so we could have an
opportunity to come back and debate this further and get to the bottom
of some of the misrepresented information that has been sent out to the
American people and have an opportunity to counter that and also work
together to find ways, through working with the House of
Representatives, to come up with a more effective bill that wouldn't
put the country in more jeopardy or, as some experts have said, would
undermine the entire program.
We obviously will be less agile with the House bill. It requires an
expansive
[[Page S3328]]
regulatory system to amass the level of oversight over the current
program. I think the real problem is it requires no data retention
mandate. The USA FREEDOM Act does not require companies to hold the
data sought by the government. Therefore, the USA FREEDOM Act could be
operationally useless as companies update their business model in
response to changes in technology or market demand. The telephone
companies--all 1,400 of them--many don't want to go through the
expensive process of the oversight they need to have in the process.
They want to sell phones. And they are hearing a lot from customers who
basically say: I don't want to buy your phone if it is going to be
subject to them listening to everything I do and say--being collected.
Well, first of all, that is factually wrong, but it is an error that
has been said over and over on this floor by some Members. That is
absolutely wrong. It is false. If we are going to go forward here, we
need intellectual honesty about what the program is and what it isn't,
and it shouldn't be labeled as something it isn't. I will address that
at a later point in time.
But the USA FREEDOM Act, by not allowing retention for a fixed period
of time, also lessens our ability to make this program effective. So I
have much more to say on this, and I know we are going into caucus as a
party to see how we might go forward, given where we are.
It was not necessary that we be here on a Sunday with the clock
ticking toward midnight. We could have continued or we could have gone
forward without getting to this particular point in time. But now we
will have the opportunity--and, unfortunately, what it looks like is we
will have the opportunity to debate this while the program expires.
That is a bet I didn't want to take--the bet being that nothing will
happen if we don't have this tool in the amount of time that is going
to be taken to now address this. That is running a risk I am not sure
Members want to take. I don't want to be part of somebody who says this
isn't important enough; therefore, we will let it expire and we will
not extend it for a day or an hour or a month or a sufficient amount of
time to come to a reasonable conclusion as to how we retain this very
important intelligence-gathering tool to keep us safe from terrorists.
To go dark on this is a risk of Americans' lives. It is a risk that we
are taking, and we are going to be responsible for our vote, whatever
that vote is. I, personally, don't want the responsibility of saying:
Oh, don't worry. Nothing is going to happen out there. The hundreds of
hours that I spend in the Intelligence Committee tells me there is a
lot that can happen out there.
Members have every right, if they are not on that committee--every
right to access what we access. We have invited people to come down and
see it for themselves, so they at least understand what it is and what
it isn't. To my knowledge, only two have taken us up on that. There may
be more I have missed. But some of those who have stated this program
in a totally false way have the siren song to the people out there who
think Big Government is in their bedroom, Big Government is taking
every piece of information they have about themselves, and Big
Government is storing this and ``listening to all your phone calls.''
That is a bunch of hokum and it is wrong.
And for those who refuse to stand up and acknowledge that--because
they have had access to the program and refused to take that access--
have to bear the responsibility of sowing this wild theory and idea
about Big Government in your bedroom and Big Government in your car and
Big Government on your phone and Big Government collecting your emails
and Big Government doing everything and storing it until the time that
Big Government will come and take everything away from you.
I didn't come here to do that and this Senate isn't here to do that
and we will not do that. That is why this program has more oversight
than any other program in the entire United States Government, and we
will put more oversight on there if that is necessary. I will stay up
all night and stand over at NSA and make sure they are not listening to
your phone calls. But it is irresponsible misrepresentation--
irresponsible misrepresentation--to factually state a falsity and not
tell the truth.
It is time we told the truth and it is time we stood up to this thing
and make sure we are doing everything we can to protect Americans from
threats of a lot of people and a lot of organizations that want to kill
us all, that would like to see our heads on the chopping block. This is
real in our country, as people who are trained by ISIS not only flock
back here from Syria, but they inspire people here to pick up weapons
and do harm to the American people.
I know the Senator from Arizona has a question.
Mr. PAUL addressed the Chair.
Mr. COATS. I have not yielded the floor.
Mr. PAUL addressed the Chair.
Mr. McCAIN. Mr. President, I ask for the regular order, and I want to
ask the Senator from Indiana a question.
The PRESIDING OFFICER. The Senator from Indiana has the floor.
Mr. COATS. I would be happy to yield to the Senator from Arizona for
a question.
Mr. McCAIN. Maybe the Senator from Kentucky should know the rules of
the Senate, that the Senator from Indiana has the floor and the
gentleman is open to respond to a question.
My question to the Senator from Indiana--and I want to say that his
words are powerful and accurate.
Mr. PAUL. Mr. President, how much time remains on the clock for the
Republican side?
Mr. McCAIN. I would ask the Senator from Indiana if he has seen--
Mr. PAUL. Mr. President, how much time is remaining?
Mr. McCAIN. I ask for the regular order.
The PRESIDING OFFICER. I think the Chair has made very clear that the
Senator from Indiana has the floor.
Mr. COATS. Mr. President, I thank you.
I know the Senator from Kentucky understands that when a Senator has
the floor, they are entitled to speak because he has used that rule
himself.
Mr. McCAIN. Twice the Senator from Kentucky has not observed the
rules of the Senate.
I would ask the Senator from Indiana, you have seen the events lately
that are transpiring. ISIS has taken Palmyra. They are in the streets
burning bodies, killing people, going to destroy 2,000-year-old
antiquities, and at the same time Ramadi has fallen with thousands of
innocent men, women, and children being massacred. At this time, isn't
this program as critical as it has ever been since its inception, given
the fact that the Middle East is literally on fire and we are losing
everywhere?
Mr. COATS. It is more essential than ever, in response to the
question from the Senator from Arizona. It is more necessary than ever,
as we have seen a higher threat level since 9/11. Of course, we didn't
know what the threat was in 9/11, so I don't know how far we have to go
back. But our intelligence today, whether it is any aspect of any of
our intelligence agencies, they are sounding the alarm that we need to
be as vigilant as possible. We need to, within the law--and we are
operating within the law--use every tool possible to try to stop an
attack on the American people. What happened on 9/11 was a catastrophe
that none of us could have comprehended. A 9/11 with the possession of
nuclear, radioactive, biological or chemical weapons would make New
York look like just a small incident. It would be 3 million people
instead of 3,000 people. I think we have an obligation to do what we
can without invading anyone's privacy.
What we are trying to find is this balance between protecting privacy
and protecting ourselves from terrorist attacks--protecting Americans
from terrorist attacks. We have done this with this program. If what
has been said about this program were true, if the falsehoods that have
been said were true, I would be the first to line up and say: No, we
can't breach the privacy of the American people by doing what they are
doing. But the fact is none of it is true. There has not been one act
of abuse of this program over the years it has been in place. It has
more oversight and layers of oversight. As former Attorney General
Mukasey said: For the government to violate
[[Page S3329]]
and bypass this, it would make Watergate look like kindergarten
activity. It would be a conspiracy that would include hundreds of
people, and they would all have to swear that they would not breach
their conspiratorial process here--a program that is overseen by the
Judiciary Committee, by the Senate Intelligence Committee, the House
Intelligence Committee, the body of the Senate has access to this and
the body of the House--that is 535 people--by the executive branch, a
program that was endorsed by Barack Obama, until he changed his mind,
apparently, because the public was going the other way based on false
information. People are out here basically making the accusations that
they are making to try to take this program down and all we are trying
to do is work with the House to find a reasonable way of keeping this
tool alive--keeping Americans safe.
Mr. McCAIN. Will the Senator yield for a further question?
The PRESIDING OFFICER. Would the Senator suspend?
Under the previous order, all time for debate has expired.
Mr. PAUL. Mr. President, my understanding is there is still 5 minutes
remaining on the opposition side. I request that time.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. I object.
Mr. PAUL. Mr. President, how can we have an objection when we already
have a consent agreement that says we have 30 minutes of equally
divided time and you still have 5 minutes remaining on the opposite
side?
The PRESIDING OFFICER. The time was divided in the usual form, and
the time for debate has expired.
Mr. PAUL. Mr. President, the time could not have been divided
equally, because apparently somebody must have given one side more time
than the other.
The PRESIDING OFFICER. The 5 minutes of time that was allotted to the
Democratic side was unused, and it was equally divided at 23 minutes
apiece.
Mr. PAUL. Mr. President, I was here for 30 minutes of the Republican
side speaking. I sat at my seat for 30 minutes. It was not 23 minutes
of equally divided time.
Mr. McCAIN. Mr. President, regular order--obviously people don't know
the rules of the Senate. Maybe they should learn them.
Mr. PAUL. Mr. President, I request the remaining 5 minutes of time on
the opposite side.
The PRESIDING OFFICER. Is there objection to the request of the
Senator from Kentucky?
Mr. McCAIN. I object.
Mr. PAUL. Mr. President, I challenge the ruling of the Chair and
request the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is not a sufficient second.
Mr. PAUL. I request a live quorum call.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. PAUL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PAUL. Mr. President, I ask unanimous consent to speak for 5
minutes--the 5 minutes that was remaining on the opposition side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PAUL. Mr. President, let us be very clear about why we are here
this evening. We are here this evening because this is an important
debate. This is a debate over the Bill of Rights. This is a debate over
the Fourth Amendment. This is a debate over your right to be left
alone. Justice Brandeis said that the right to be left alone is the
most cherished of rights. The right to be left alone is the most prized
to civilized men.
Let us be clear. We are here tonight because the President continues
to conduct an illegal program. The President has been rebuked by the
court. In explicit terms, the President has been told that the program
he is conducting is illegal. Now, the President opines on television.
The President wants to blame--he says: Anybody but me.
But you know what. The President started this program without
congressional permission. Even the authors of the PATRIOT Act say that
the PATRIOT Act in no way gives authority to the President to collect
all of your phone records all of the time. If there ever was a general
warrant, if there ever was a generalized collection of information from
people about whom there is no suspicion, this is it.
We are not collecting the information of spies. We are not collecting
the information of terrorists. We are collecting all American citizens'
records all of the time. This is what we fought the Revolution over.
Are we going to so blithely give up our freedom? Are we going to so
blithely go along and just say: Take it. Well, I am not going to take
it anymore. I do not think the American people are going to take it
anymore.
Eighty percent of those under 40 say we have gone too far--that this
whole collection of all of our records all the time is too much. The
court has said: How can records be relevant to an investigation that
has not started? The court has said that even under these lower
standards, even under these standards of saying that it would be
relevant, all of the stuff they are collecting is precisely irrelevant.
Now people say: Well, they are not looking at it. They are not
listening to it. It is the tip of the iceberg, what we are talking
about here. Realize that they were dishonest about the program until we
caught them. They kept saying over and over: We are not doing this. We
are not collecting your records.
They were. The head of the intelligence agency lied to the American
people, and he still works there. We should be upset. We should be
marching in the streets and saying: He has to go. We cannot allow this.
We cannot allow the rule of law to be so trod upon that we live in an
arbitrary governmental world where they collect anything they want
anytime they want.
This is the tip of the iceberg. They are collecting records through
Executive order. They are collecting records through section 702.
People say: How will we protect ourselves without these programs? What
about using the Constitution? What about using judicial warrants? About
the Tsarnaev boy, the Boston Bomber, they say: How will we look at his
phone records? Get a warrant. Put his name on it. You can get a
warrant. There is no reason in the world--the guy had already bombed
us. Do you think anybody was going to turn down a warrant? We should
have gotten a warrant before.
Get warrants on people we have suspicion on. The Simpson guy that was
shot in Garland had already been arrested. We had suspicion.
Let's hire 1,000 more FBI agents. Let's hire people to do the
investigation and quit wasting time on innocent American people. Let's
be very clear why we are here: President Obama set up this program, the
President Obama who once was against the PATRIOT Act. President Obama
once said: You know what; we should have judges write warrants.
President Obama, who once believed in the Fourth Amendment, is the
President who is now scooping up all of your records illegally. Then he
feigns concern and says: Oh, we need to pass this new bill. He could
stop it now. Why won't someone ask the President: Why do you continue?
Why won't you stop this program now? The President has every ability to
do it. We have every ability to keep our Nation safe. I intend to
protect the Constitution.
The PRESIDING OFFICER. The Senator's time has expired.
____________________
[Congressional Record Volume 161, Number 85 (Sunday, May 31, 2015)]
[Senate]
[Pages S3329-S3340]
USA FREEDOM ACT OF 2015--MOTION TO PROCEED--Continued
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. Mr. President, before the recess, I tried to get a
short-term extension of three provisions that
[[Page S3330]]
will expire at midnight tonight: section 215, business records; section
206, roving wiretap authority; and the ``lone wolf'' provision.
Unfortunately, those efforts were unsuccessful.
``Lone wolf'' and roving wiretap are not--I repeat, not--the subject
of controversy with the House bill. So I would propose that we extend
at least the ``lone wolf'' and the roving wiretap authorities while we
continue to litigate the differing views on section 215. More
specifically, I would propose that we extend those two provisions--
``lone wolf'' and roving wiretaps--for up to 2 weeks.
Unanimous Consent Request
Mr. President, having said that, I ask unanimous consent that the
Senate proceed to the immediate consideration of a bill, which is at
the desk, to extend the expiring provisions relating to ``lone wolf''
and roving wiretaps for 2 weeks, and that the bill be read a third time
and passed, and the motion to reconsider be considered made and laid
upon the table with no intervening action or debate.
The PRESIDING OFFICER. Is there objection?
The Senator from Kentucky.
Mr. PAUL. Mr. President, reserving the right to object, one of the
promises that was given when the PATRIOT Act was originally passed was
that, in exchange for allowing a less than constitutional standard, we
would only use the actions against----
The PRESIDING OFFICER. Is there objection?
Mr. PAUL. Terrorists and against foreigners. We found that 99 percent
of the time, section 213 is used for domestic crime. I believe that no
section of the PATRIOT Act should be passed unless our targets are
terrorists--not Americans.
Mr. CORNYN. Mr. President, regular order.
The PRESIDING OFFICER. The Senator from Kentucky----
Mr. COTTON. Regular order.
Mr. PAUL. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. McCONNELL. Mr. President, last week, I proposed giving the
Intelligence Committee the time it would need to work toward the kind
of bipartisan legislative compromise Americans deserve--a compromise
that would preserve important counterterrorism tools necessary to
protect American lives. That effort was blocked.
Just now, I proposed an even narrower extension that would have only
extended some of the least controversial--least controversial--but
still critical tools to ensure they do not lapse as Senators work
toward a more comprehensive legislative outcome. But even that very
narrow offer was blocked. I think it should be worrying for our country
because the nature of the threat we face is very serious. It is
aggressive, it is sophisticated, it is geographically dispersed, and it
is not--not--going away.
As the LA Times reported, ``the Obama administration has dramatically
stepped up warnings of potential terrorist attacks on American soil
after several years of relative calm.'' The paper reported that this is
occurring in the wake of ``FBI arrests of at least 30 Americans on
terrorism-related charges this year in an array of `lone wolf' plots.''
So these aren't theoretical threats. They are not theoretical
threats. They are with us every day. We have to face up to them. We
shouldn't be disarming unilaterally as our enemies grow more
sophisticated and aggressive, and we certainly should not be doing so
based on a campaign of demagoguery and disinformation launched in the
wake of the unlawful actions of Edward Snowden, who was last seen in
Russia.
The opponents of this program have not been able to provide any--
any--examples of the NSA abusing the authorities provided under section
215. And the record will show that, in fact, there has not been one
documented instance of abuse of it.
I think it is also important to remember that the contents of calls
are not captured. That is the general view, but it is an incorrect one.
I will say it again: The contents of calls are not captured. I say this
to the American people: If you have been told that, that is not
correct. That is what I mean about a campaign of disinformation. The
only things in question are the number dialed, the number from which
the call was made, the length of the call, and the date. That is it.
That is it. Detailed oversight procedures have been put in place, too,
in order to protect the privacy of Americans.
Now, I believe this is a program that strikes a critical balance
between privacy on the one hand and national security on the other.
That doesn't mean the Senate still shouldn't have the opportunity to
make some changes to it. That is precisely the outcome I had been
hoping to facilitate by seeking several short-term extensions. And
considering all that has come to light about the House-passed bill in
recent weeks, I believe this was more than reasonable.
The administration's inability to answer even the most basic
questions about the alternate bulk data system it would have to build
under that legislation is, to say the least, pretty troubling--pretty
troubling. And that is not just my view. That is the view of many in
this body, including colleagues who have been favorably predisposed to
the House bill.
In particular, I know Senators from both parties have been disturbed
by the administration's continuing inability to guarantee whether the
new system would work as well as the current one or whether there would
even be any data available to analyze. While the administration has let
it be known that this nonexistent system could only be built in time if
telephone providers cooperated in building it, providers have made it
abundantly clear that they are not going to commit to retaining the
data. They are not going to commit to retaining the data for any period
of time unless legally required to do so, and there is no such
requirement in the House-passed bill--none at all.
Here is how one provider put it: ``[We are] not prepared to commit to
voluntarily retain documents for any particular period of time pursuant
to the proposed USA Freedom Act if not required by law''--if not
required by law.
Now, these are just a few of the reasons I thought it prudent to try
to give the Senate more space to advance better legislation through
committee consideration and regular order, with input from both sides.
But, my colleagues, it is now clear that will not be possible in the
face of a determined opposition from those who simply wish to end the
counterterrorism program altogether. No time to try to improve the
House-passed bill will be allowed because some would like to end the
program altogether.
So this is where we find ourselves. This is the reality. So it
essentially leaves us with two options. Option one is to allow the
program to expire altogether without attempting to replace it. That
would mean disarming completely and arbitrarily, based on a campaign of
disinformation, in the face of growing, aggressive, and sophisticated
threats--growing, aggressive, and sophisticated threats. That is a
totally unacceptable outcome--a completely and totally unacceptable
outcome. So we won't be doing that.
[[Page S3332]]
So we are left with option two, the House-passed bill. It is
certainly not ideal. But along with votes on some modest amendments
that attempt to ensure the program can actually work as promised, it is
now the only realistic way forward. So I remain determined to continue
working toward the best outcome for the American people possible under
the circumstances.
This is where we are, colleagues. We have the House-passed bill with
some serious flaws and an inability to get a short-term extension to
try to improve the House-passed bill in the way we normally do this--
through some kind of consultative process.
So bearing that in mind, I move to proceed to the motion to
reconsider vote No. 194, the vote by which cloture was not invoked on
the motion to proceed to H.R. 2048.
The PRESIDING OFFICER. The question is on agreeing to the motion.
The motion was agreed to.
Mr. McCONNELL. Mr. President, I move to reconsider the motion to
invoke cloture on the motion to proceed to H.R. 2048.
The PRESIDING OFFICER. The question is on agreeing to the motion.
The motion was agreed to.
Cloture Motion
The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before
the Senate the pending cloture motion, which the clerk will state.
[[Page S3331]]
The senior assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the motion to
proceed to H.R. 2048, an act to reform the authorities of the
Federal Government to require the production of certain
business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other
purposes.
Mitch McConnell, Lamar Alexander, Michael B. Enzi, David
Vitter, John Cornyn, Johnny Isakson, Lisa Murkowski,
John Barrasso, Richard Burr, Pat Roberts, Roy Blunt,
Bob Corker, Orrin G. Hatch, Jerry Moran, Patrick J.
Toomey, Mike Lee, Ted Cruz.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to H.R. 2048, an act to reform the authorities of the
Federal Government to require the production of certain business
records, conduct electronic surveillance, use pen registers and trap
and trace devices, and use other forms of information gathering for
foreign intelligence, counterterrorism, and criminal purposes, and for
other purposes, shall be brought to a close, upon reconsideration?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Wyoming (Mr. Enzi), the Senator from South Carolina (Mr.
Graham), and the Senator from Nebraska (Mr. Sasse).
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Menendez), the Senator from Washington (Mrs. Murray), and the Senator
from Hawaii (Mr. Schatz) are necessarily absent.
The PRESIDING OFFICER (Mr. Barrasso). Are there any Senators in the
Chamber wishing to vote or to change their vote?
The yeas and nays resulted--yeas 77, nays 17, as follows:
[Rollcall Vote No. 196 Leg.]
YEAS--77
Alexander
Ayotte
Baldwin
Bennet
Blumenthal
Booker
Boozman
Boxer
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Cochran
Coons
Corker
Cornyn
Cruz
Daines
Donnelly
Durbin
Feinstein
Flake
Franken
Gardner
Gillibrand
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Isakson
Johnson
Kaine
King
Kirk
Klobuchar
Lankford
Leahy
Lee
Manchin
Markey
McCain
McCaskill
McConnell
Merkley
Mikulski
Murkowski
Murphy
Nelson
Perdue
Peters
Portman
Reed
Reid
Rounds
Sanders
Schumer
Scott
Shaheen
Stabenow
Sullivan
Tester
Tillis
Toomey
Udall
Vitter
Warner
Warren
Whitehouse
Wicker
Wyden
NAYS--17
Barrasso
Blunt
Coats
Collins
Cotton
Crapo
Ernst
Fischer
Grassley
Moran
Paul
Risch
Roberts
Rubio
Sessions
Shelby
Thune
NOT VOTING--6
Enzi
Graham
Menendez
Murray
Sasse
Schatz
The PRESIDING OFFICER. On this vote, the yeas are 77, the nays are
17.
Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, upon reconsideration, the motion is agreed to.
The Senator from Kentucky.
Mr. PAUL. Mr. President, could we have order?
The PRESIDING OFFICER. The Senate will be in order.
Mr. PAUL. Will the Chair inform me when I have 5 minutes remaining?
The PRESIDING OFFICER. The Senator will be so notified.
Mr. PAUL. Mr. President, tonight begins the process of ending bulk
collection. The bill will ultimately pass. We always look for silver
linings. I think the bill may be replacing one form of bulk collection
with another, but the government, after this bill passes, will no
longer collect our phone records. My concern is that the phone
companies still may do the same thing. Currently, my understanding is
the NSA is at the phone company sucking up the phone records and
sending them to Utah. My concern is----
The PRESIDING OFFICER. Order in the Senate, please. The Senator
deserves to be heard.
Mr. PAUL. My concern is that under the new program, the records will
still be sucked up into NSA computers, but the computers will be at the
phone company, not in Utah. So the question is, Will it be a
distinction without a difference? The question also will be, Will this
be individualized?
One of the issues about the Fourth Amendment that was the biggest
part of the Fourth Amendment for our Founding Fathers was that a
warrant should be individualized. General warrants were what we fought
the Revolution over. James Otis fought a famous case in the 1760s, and
he fought against the British soldiers writing their own warrants.
What is interesting is that part of the PATRIOT Act allows our police
to write their own warrants. We have something called national security
letters. These have been done by the hundreds of thousands.
Interestingly, when the President was in the Senate, he was opposed to
national security letters and said that they should have judicial
warrants. Now, it is interesting that in this bill that will pass, it
is supported by the President, supported by the Director of National
Intelligence, and now supported in a wide bipartisan fashion.
It concerns me whether or not----
The PRESIDING OFFICER. The Senate will be in order.
Will the Senator please suspend.
The Senate will be in order. Please take your conversations out of
the well, out of the Chamber. The Senator deserves to be heard.
Mr. PAUL. It concerns me that the President, who supports the bulk
data collection and has been performing it illegally for 6 years, now
supports this bill. The devil is in the details.
The question is, Will the new bill still allow bulk collection by the
phone companies? Will they be able to put into the search engine not an
individual about whom we have suspicion but an entire corporation? This
is what was revealed when we saw the warrant that had Tsarnaev's name
on it.
The Director of National Intelligence came before the American
people, came before Congress and swore under oath that they weren't
doing this. Part of my problem with the intelligence-gathering in our
country is it is hard for me to have trust. It is hard for me to have
trust in the people to whom we are giving great power.
They also insist we won't be able to catch terrorists. They insist
the bulk collection allowed them to catch terrorists. But then it
turned out, when it was investigated, when we looked at the classified
documents, when the President's bipartisan privacy and civil liberties
commission looked at this, when his review board looked at this, and
then when the Department of Justice inspector general looked at this,
[[Page S3333]]
they all found that there was no unique data, there was no great
discovery, there was no great breaking up of a terrorist ring.
People have brought up the Boston Bomber, the Tsarnaev boy. They say:
Well, we need this. We need the PATRIOT Act after the bombing to get
his phone records.
That is the most absurd thing I have ever heard. He has already
committed a bombing. In fact, I think he was dead at that point, and
they are saying we couldn't get a warrant to look at his phone records?
It is absolutely absurd.
I had a meeting with somebody from the intelligence community about 6
months ago, and I asked them this question: How do we get more
information about terrorists--with a warrant with their name on it,
where we can go as deep into the details as we want, or this metadata
collection that uses a less-than-constitutional standard? And he said:
Without question, we get more information with a warrant than we do
through the metadata.
When someone commits an act of atrocity, there is no question we
would get a warrant, but I would go even further. I would say that I
want to get more warrants on people before they blow up things. I would
say that we need more money spent on FBI agents analyzing data and
trying to find out whom we have suspicion about so we can investigate
their records. I think we spend so much money on people about whom
there is no suspicion that we don't have enough time and money left to
go after the people who would actually harm us.
The people who argue that the world will end at midnight tonight----
The PRESIDING OFFICER. The Senator will please suspend.
Order in the Chamber. Please take your conversations off the floor.
Mr. PAUL. The people who argue that the world will end and that we
will be overrun by jihadists tonight are trying to use fear. They want
to take just a little bit of our liberty, but they get it by making us
afraid. They want us to fear and give up our liberty. They tell us that
if we have nothing to hide, we have nothing to fear. That is a far cry
from the standard we were founded upon--innocent until proven guilty.
One of the objections I tried to bring forward earlier but was
interrupted repeatedly was that the PATRIOT Act was originally intended
to go after foreigners and terrorists. We allowed a less-than-
constitutional standard. We didn't ask for probable cause; we just said
it had to be relevant, the information had to be relevant to an
investigation about terrorists. But here is the problem, and this is
one of the big problems I have with the PATRIOT Act.
We now use parts of the PATRIOT Act to arrest people for domestic
crime. Section 213, sneak-and-peek, where the government can come into
your house, place listening devices, never announce they were ever in
your house, and then leave and monitor your behavior and never let you
know they were there, is being used 99.5 percent of the time for
domestic crime.
So, little by little, we have allowed our freedom to slip away. We
allowed the Fourth Amendment to be diminished. We allowed the narrowing
loss of something called probable cause.
People say: Well, how would we get terrorists with that?
The vast majority of warrants are approved in our country--the vast
majority of warrants that are Fourth Amendment warrants where we
individualized and put a name on it and asked probable cause. If
tonight the police are looking for a rapist or a murderer, they will go
to the house, and if they suspect the person is inside but nothing is
imminently happening, they will stand on the curb and they almost
always get a warrant.
Do you think there is a judge in this land who would not grant a
warrant--particularly after the Boston bombing--to look at the Tsarnaev
brothers' records? There is not a judge in the land who would say no. I
would venture to say that in advance there is not much chance that a
judge would say no if you went to them and said: The Russians have
given us indication and evidence that he has been radicalized and has
associated overseas with people who are training to attack us.
There is no reason why the Constitution can't be used. But we just
have to not let those who are in power make us cower in fear. They use
fear to take your freedom, and we have to be very, very careful of
this.
Now, some are saying I am misrepresenting this, that I am saying the
government is listening to your phone calls. I am saying they are
collecting your phone records. There are programs, though, in which
there may be looking at content--emails, for example. The current law
says that after 6 months even the content of your email has no
protection. We have a very good piece of legislation to try to fix
that. But realize that those who are loud, those who are really wanting
you to give up your freedom, don't believe the Fourth Amendment
protects your records at all.
And this is a big debate. We went to the court. The Second Circuit
Court of Appeals--the highest court in the land just below the Supreme
Court--said that what they are doing is illegal, but we don't yet have
a ruling on whether it is constitutional.
One of my fears about the bill we are going to pass--the sort of in-
between step some think may be better--is that it could moot the case.
This means the court case will never get heard by the Supreme Court. I
have a court case against the NSA. There is another district court that
has ruled against the NSA. We now have an appellate ruling against the
NSA. The court may well look at the activity of the Senate and say:
Well, you guys have fixed the problem. We don't need to look at it
anymore. It is no longer relevant.
My other concern about this new bill that is going to pass is that
the same people will judge it who judged the previous system. These
people are called the rubberstamp courtroom, also known as FISA.
Realize that the FISA Court is the court that said the collection of
all Americans' records is relevant. The appellate court basically
laughed at this notion and said that it sort of destroys any meaning to
the word ``relevant'' if you collect everybody's records. It is not
even a modifier. Instead of saying ``relevant,'' they should have said
``You can have everyone's records all the time.''
One of my other concerns about the in-between solution we are going
to choose is that some are conjecturing--and you have to be suspicious
of a government that often lies about their purpose--some are
conjecturing that they are going to collect more phone data under the
new system. One of the complaints last week, as there was discussion
about this--in the newspaper, it was reported that really they were
only collecting about 20 to 30 percent of your cell phone data. They
were trying to collect all of your land line data, but they weren't for
some reason collecting all of your cell phone data. One of my concerns
is that as we go to this new system, they may actually be better at
collecting our phone records and they may well be able to collect all
of our cell phone data.
Unless we go to a system where we individualize the warrants, unless
we go to a system where a person's name is on the warrant, I am going
to be very, very concerned.
Now, we will present amendments on this bill. We tried to negotiate
to be allowed to present amendments, but there wasn't a lot of
negotiating that went on in the last week--in fact, there was none. We
will still try. We will put amendments forward, and we will try to get
amendments to make the bulk collection less bad when it does occur. One
of the things we would like to do is to say that when they search the
phone records, they can't put the name of a corporation in there; they
would have to put in an individual's name.
It is kind of tricky, the way these things are worded. The wording of
this bill will say they can only put a U.S. person into the selector
term to search all phone records. The problem is that they define
``U.S. person'' as also meaning corporation or association or grouping.
So there is a little bit of looseness to the language. So if we are
still going to allow corporations, what is to stop them from going back
and putting AT&T or Verizon in the selection? Once again they will be
looking at all the phone records, and all we will have done is
transferred the phone records from government control in Utah to phone
company control in another location. Will we be trading bulk collection
in Utah for bulk collection under the phone companies?
There are good people who believe this bill will reform, and I think
they
[[Page S3334]]
are well-intended. I think they are good people who really think that
we will end bulk collection and that it won't happen. My fear, though,
is of the people who interpret this work at a place known as the
rubberstamp factory over at FISA. It is a secret court, and it is a
court in which 99.5 percent of the time they approve warrants. Warrants
are simply rubberstamped over there. In fact, they approved that
``relevant'' meant all of your records. So my question is, If they put
AT&T as a selector item, will we have the same thing, just in a
different location?
I have several amendments I am interested in if we are able to amend
the bill.
One is that the search would have to be an individual. That is more
consistent with the Fourth Amendment.
Another one would change the standard to the constitutional standard,
which would be that there would have to be probable cause, which is a
higher standard than simply saying it is relevant. Then we would
actually be sending a new signal to the FISA Court.
Another amendment I have, which I think would go a long way toward
making the PATRIOT Act less bad--I think is the best way to put it--
would be to say that any information gathered under a less-than-
constitutional standard could only be used for foreigners and
terrorists. See, that was the promise. At the time, there were people
who opposed the PATRIOT Act--not enough, but there were a few--and when
they opposed the PATRIOT Act, they said their fear was that it would be
used against American citizens.
They said: No, no, we are only going after terrorists. But the law
allows them to do it, and we now have sections of the PATRIOT Act which
99.5 percent of the time are being used for domestic crime. We have
also seen that the Drug Enforcement Agency--it is alleged--is using
information gathered under the PATRIOT Act to then go back and recreate
cases against people for domestic crime.
The question we have to ask ourselves is, Are we so frightened that
we are willing to give up our freedom? Are we really willing to trade
liberty for security?
I think the U.S. Court of Appeals had some great points that they
made when they ruled against the government, and I think what is
important to know is that the President has continued to do this
illegally. You have seen him on television. The President has been
saying: Well, Congress is just getting in the way. If Congress would
just do their job and get rid of this, everything would be OK. But the
truth is that Congress never authorized this. Even the authors of the
PATRIOT Act said this was not something Congress ever even
contemplated. The court is now saying that as well. This was done by
the executive branch--admittedly, both a Republican executive branch
and a Democratic executive branch--but this wasn't created by Congress.
So when the President says ``Well, Congress should just do this,''
the question that has never been asked by anyone in the media is ``Why
doesn't he stop it?'' Everybody who has given advice has said he would,
and he will come out and say he believes in a balanced solution, but he
really is just abdicating the solution and has never discontinued the
program, even when he has been told explicitly by the court that the
program is an illegal program.
This is what the U.S. court of appeals said in the case ACLU v.
Clapper:
We agree with the appellants that such an expansive concept
of ``relevance'' is unprecedented and unwarranted. . . . The
records demanded are not those of suspects under
investigation, or of people or businesses that have contact
with such subjects, or of people or businesses that have
contact with others who are in contact with the subjects.
So even two steps removed, we are gathering records that are
completely irrelevant to the investigation. We are gathering up the
phone records of innocent Americans.
The other side will say: Well, we are not looking at them.
So I have been thinking about this. Our Founders objected to the
British soldiers writing warrants. They objected to them coming into
their house and grabbing their papers. Do you think our Framers would
have been happy if the British Government said: OK, we are just
breaking your door down, we are just getting your papers, but we are
not going to look at them. Do you think that would have changed the
mindset of the Framers? So the fact that they say they are not looking
at our records--is that any comfort or should it be any comfort? The
act of violation is in taking your records. The act of violation is in
allowing the police or a form of the police--the FBI--to write warrants
that are not signed by a judge.
The court goes on to say: ``The interpretation that the government
asks us to adopt defies any limiting principle.'' The idea of a
limiting principle when the court looks at things is that, the way I
see it, is the difference between something being arbitrary, where
there is no sort of principle that confines what would happen--if you
have a law that has no limiting principle, it is essentially arbitrary.
This is what Hayek wrote about in ``The Road to Serfdom.'' Hayek
talked about the difference between the rule of law and having an
arbitrary interpretation of the law.
The danger of having an arbitrary interpretation of the law and the
danger of having general warrants is that they have been used in the
past with bias. People have brought their own bias into this. In the
sixties, the bias was against civil rights activists and against
Vietnam war activists. In the forties, the bias was in incarcerating
and interring Japanese Americans. But what was consistent in all of
these circumstances was that there was a generalization--a
generalization based on the color of your skin, whether you were Asian
American or African American, and also about the shade of your
ideology. There is a danger in allowing the government to generalize
without suspicion and to disobey the Fourth Amendment, and the danger
comes that the government could one day generalize and bias could enter
into things.
We have on our records right now laws that allow an American citizen
to be detained. It is not specifically a part of the PATRIOT Act, but
it is along the same lines as this, that you are getting rid of the due
process amendments and the ability of the Bill of Rights to protect an
individual. When we allow an individual to be detained without a trial,
what happens is that there is the possibility that someone could decide
we don't like ``those'' people. And when you say that could never
happen, think about the times in our history when it has.
Richard Jewell, everybody said he was the Olympic Bomber. He was
convicted on TV. Within hours, people said: Richard Jewell is guilty.
Think about if he had been a Black man in 1920 in the South what may
have happened to him. Think about the possibility for bias entering
into our government. Think about what Madison said about government
is--Madison said that we restrain government because we are worried
that government may not be comprised of angels. If government were
comprised of angels, we would not have to worry about restraining
government.
Patrick Henry said that the Constitution was about restraining
government, not the people. It is not enough for people to say: Oh, I
am a good man or I am a good person or the NSA would never do this. The
other problem that makes us doubtful is that the NSA has not been
honest with us. If they want to develop trust again, the President
should have immediately let the person who lied to us go, the Director
of National Intelligence.
The appeals court concluded by saying that the government's bulk
collection of telephone metadata exceeds the scope of what Congress has
authorized and therefore violates section 215 of the PATRIOT Act. Some
will try to argue that this debate was not worth the time we took on
it. I could not disagree more. I am like everybody else. You know, I
prize my time with my family and being at home on the weekends. I wish
we would have done this in a more sensitive way, where we would have
had more time and had an open amendment process.
But we waited until the end. We waited until the final deadline. This
is a characteristic of government. It is a flaw in government, frankly.
We lurch from deadline to deadline. People wonder why Congress is so
unpopular. It is because we go from deadline to deadline and then it
is: Hurry up. We have no time to debate. We just must pass it as is.
[[Page S3335]]
The biggest debate against amendments is--and it finally convinced
people who did not like this. They so much dislike amendments and
slowing down the process, they are just going to take it. Even though
they don't like it, they are going to pass what the House passed. It is
unlikely any amendments will pass.
But the thing is, we need to get away from lurching from deadline to
deadline. What happens, with budget or spending or any of these bills,
is we are presented with thousand-page bills with only hours to go.
About a year ago this came up. At that time, we were presented with a
1,000-page bill with 2 hours to go. I read the Senate rules. It said:
We are supposed to be presented with the bill for 48 hours in advance.
So I raised my hand and made a motion. The motion I made was: Guys,
we are breaking the rules here. Men and women, we are breaking the
rules here. So they just voted to amend the rules for that bill and
ignore the rules. This is why the American people are so frustrated.
People here in town think I am making a huge mistake. Some of them, I
think, secretly want there to be an attack on the United States so they
can blame it on me. One of the people in the media the other day came
up to me and said: Oh, when there is a great attack, are you going to
feel guilty that you caused this great attack?
The people who attack us are responsible for attacks on us. Do we
blame the police chief for the attack by the Boston Bombers? The thing
is, is that there can be attacks even if we use the Constitution. But
there have been attacks while collecting your bulk data. So the ones
who say: Well, when an attack occurs, it is going to be all your fault,
are any of them willing to accept the blame? We have bulk collection
now. Are any of them willing to accept the blame for the Boston
bombing, for the recent shooting in Garland?
No, but they will be the first to point fingers and say: Oh, yes, it
is all your fault. We never should have given up on this great program.
I am completely convinced that we can obey the Constitution, use the
Fourth Amendment as intended, spirited letter of the law, and catch
terrorists. When we look objectively at this program, when they
analyzed the classified information, they found that there was no
unique data. We had to fight them tooth and nail because they started
out saying that 52 cases were cracked by the bulk data program.
But then when the President's own bipartisan commission looked at it,
it turned out that none of that was true. This gets back to the trust
issue. If we are going to be lied to by the Director of National
Intelligence, it is hard for us to believe them when they come forward
and they say: Oh, this is protecting us. We have to have it. But what
we are hearing is information from someone who really did not think it
was a big deal to lie to us about whether the program even existed.
Mark my words, the battle is not over. There are some--and I talked
with one of the, I would say, smarter people in Silicon Valley,
somebody who knows this from an intimate level, how things work, and
how the codes and programs work.
He maintains that the bulk collection of phone data is the tip of the
iceberg, that there is more information in other data pools that are
classified. Some of this is done through an Executive order called
12333. I am not sure I know everything in it. I have had no briefings
on it. So anything I will tell you is from the newspaper alone. But the
thing is, is that I would like to know: Are we also collecting your
credit card information? Are we collecting your texts? Are we
collecting your emails?
They have already told us the Fourth Amendment does not protect your
emails, even the content, after 6 months. In fact, really they have
told you, the Fourth Amendment does not apply to your records at all.
So be very careful about the people who say: Trust us. We will never
violate your freedom. We will never take advantage of things. The
President's Privacy and Civil Liberties Oversight Board's conclusion
was that:
Section 215 of the PATRIOT Act has shown minimal value in
safeguarding the Nation from terrorism. We have not
identified any single instance involving a threat to the
United States in which the program made a concrete difference
in the outcome.
The President's privacy board went on to say:
The government's collection of a person's entire telephone
calling history has a significant and detrimental effect on
individual privacy.
When they talked about whether the phone records were relevant to an
investigation, the President's Commission said this:
First, the telephone records acquired under the program
have no connection to any specific FBI investigation at the
time of their collection. Second, because the records are
collected in bulk, potentially encompassing all telephone
calling records across the Nation, they cannot be regarded as
relevant to any FBI investigation.
Here is the continuing danger to us, though: It is, I think, maybe a
minor success that we are going to prevent the government from
collecting these records. But realize that the interpretation of this
will still occur in secret in the FISA Court. This is the FISA Court
that said that collecting everyone's records was relevant.
It completely destroys the notion that the word ``relevant'' has any
meaning at all. This will be the question: Whether we can trust the
FISA Court to make an interpretation that is at a higher degree of
discernment than the one in which they said ``relevant'' can mean
anything. The original USA FREEDOM Act, as passed originally by the
House committee, was a better bill. It was gradually watered down until
even the Director of National Intelligence, the one who lied about the
program, now supports it, which gives me some misgivings.
But the records that will be collected--the question is, How will we
have an interpretation by the FISA Court? The original bill had an
advocate. I thought this was a good part of the original bill. There
would be a judicial advocate who would argue on the side of those who
were having their records taken. So there would be an adversarial
court, lawyers on both sides.
Many people who write about jurisprudence and trying to find justice
say that one of the essential functions of a court system, in order to
find justice, is that there has to be a lawyer on both sides. There has
to be an advocate on both sides. The truth is not always easy to find.
The truth is presentation of facts by one side, presentation of
contrary facts by the other side, and someone has to figure out which
facts are more believable or which facts trump other facts.
So I think a judicial advocate would have been good. They are still
going to have it. They call it by a different name now, but it will be
optional at the discretion of the FISA Court. So the court that ruled
that all of your records are relevant now will have a choice as to
whether to give you an advocate. That does not give me a great deal of
comfort.
There are other ways we could do this. We occasionally do look at
terrorism cases in regular Federal court. When names come up that could
jeopardize someone's safety at our intelligence agency or a secret,
Federal courts can go into secret session. I have heard the Senator
from Oregon often mention this. I think it is a great point that no one
wants to reveal the names of anyone or the code or the secrets of how
we do this. But if we are talking about constitutional principles, we
want to do it in the open. Laws should not be discussed in secret.
As we move forward, the PATRIOT Act will expire tonight. It will only
be temporary. They will ultimately get their way. But I think the
majority of the American people actually do believe the government has
gone too far. In Washington, it is the opposite, but I think Washington
is out of touch. There will be 80 votes, you know, to say: Continue the
PATRIOT Act--maybe more.
But if you go into the general public, if you get outside the beltway
and visit America, you find it is completely the opposite. There was a
poll a couple of weeks ago that said: Over 80 percent of people under
age 40--over 80 percent of them--think that the government collecting
your phone records is wrong and should not occur. So I think really
this will be useful. People say: You are destroying yourself. You
should have never done this. The American people will not side with
you.
People wished me harm and wished that this would be unsuccessful. But
you know what, I came here to defend the Bill of Rights and to defend
the
[[Page S3336]]
Constitution, popular or not. But I frankly think that the Bill of
Rights and the Constitution are very popular, very important, and I
will continue, as long as I have breath and as long as I am here to
defend them.
I yield back the remainder of my time.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, before he leaves the floor, I just want to
make sure, having worked with Senator Paul for many, many months now,
that I especially appreciate his efforts in the last few days in this
week to try to accommodate this body with respect to amendments. My
colleague has said repeatedly that he was very interested in a short
list of amendments, that he hoped to have some modest time that would
be available for these amendments.
He and I have worked together on a number of them. I think it is a
reflection, as people think about this debate and on a topic that is of
such enormous importance, that my colleague from Kentucky, especially
with respect to this amendment issue, has tried continually to be
reasonable and to be accommodating to this body.
Until just a few hours ago, I was at home in Oregon having townhall
meetings, flew all night to be here for this extremely important
session. Of course, the topic we discussed this evening was front and
center in terms of my constituents.
The message from Oregonians at these townhall meetings was very
clear. The people whom I have the honor to represent in the Senate want
policies that advance their security and protect their liberties. The
program we have been talking about tonight in the Senate really does
not deliver either. It does not make us safer. It chips away at our
liberties.
I am going to spend a little bit of time this evening making the case
for those kinds of arguments and laying out the challenge for the days
ahead.
Now, with respect to this safety issue, all of us understand--
particularly the Presiding Officer, who has been on the Intelligence
Committee, as I have, for over 14 years--that it is a dangerous world.
Anyone who serves on the Intelligence Committee knows that beyond any
kind of debate.
So we want policies that really deliver both security and liberty.
This is what the President's own experts had to say with respect to
this program that involves collecting millions and millions of phone
records on law-abiding Americans. This was a group that was appointed
and spent a considerable amount of time looking at the bulk phone
records collection program. They issued a report, and will I just
paraphrase what is the central finding, on page 104 of their report: As
to information contributed to terrorist investigations by the use of
section 215 telephony metadata--that is the collecting all of these
millions and millions of phone records--these experts say that ``could
readily have been obtained in a timely manner using conventional
Section 215 orders.''
Now, the reason that is important is it spells out and recognizes
that those who signed this report are individuals with some of the most
pristine antiterror credentials in this country--Mike Morell, for
example, the former Acting Director of the CIA; Richard Clarke, who
held an extremely important position in two administrations and served
with both Republicans and Democrats. Both of them are signatories to
this important report.
Beyond that--and it has not received much attention--the reality is
that our government, on top of everything else, has emergency
authorities so that when those who are charged with protecting our
country believe there is a threat to the Nation, they are allowed to
issue an emergency authorization to get the information they need right
away, and then they can go back and get the warrant approved after the
fact.
Nobody is talking about eliminating that emergency authority. So what
we have is a program that the most authoritative antiterror experts in
the country believe does not make our Nation any safer. I read the most
significant finding in their report.
On top of that, as I just indicated, emergency authorities are still
preserved. In fact, I have indicated to our President and to those who
work in the intelligence agencies that if at any point the executive
branch and, particularly, the intelligence agencies feel that their
emergency authorities are inadequate to protect the country, I
personally would be willing to support efforts to ensure that those
emergency capabilities are reformed and our country can take the steps
it needs when it is necessary.
On top of this question, with respect to the issue of our safety, I
want to talk about what I heard at some length earlier today with
respect to how the program worked. I heard a number of Senators say
that nobody in government is listening to these calls. That was
repeated a number of times on the floor of this body.
When the government, under this program, knows whom you called, when
you called, and where you called from, in many instances the government
doesn't need to be listening. If the government knows, under this
program, that a person called a psychiatrist 3 times in 36 hours--twice
after midnight--that is a lot of private and personal information. The
government doesn't need to be listening to that call.
So as to this notion that some who have wanted to make sure that our
country would have both security and liberty are saying that it is a
fantasy that the government is listening to calls, I could tell you
that those who have been trying to reform the program have said, in
effect, that the government doesn't need to listen to those calls. If
the government has that amount of private and personal information, the
government knows a lot about you, and it really doesn't need to listen.
Certainly, if you are talking about a land line, then the government
knows where you are calling from if they have a phone book.
So with respect to this question of the government listening, I want
it particularly understood that a program such as this, when the
government has this kind of information, I believe, represents a threat
to our liberty. The reason why I think so is that hardly a week goes by
when databases aren't violated. No. 1, we see that reported regularly
in the press. No. 2, we have known about unfortunate times in our
history--J. Edgar Hoover comes to mind--when this kind of information
could be used. And, No. 3, I have been very concerned, given what our
former colleague, Senator Udall, and I had to do with respect to bulk
phone record collection of email. We battled to end this. Of course,
this was email that could be read by government agencies. We battled
with various intelligence leaders saying that we felt this was a
violation of people's rights and it wasn't effective. They asserted for
months and months that it was. Finally, one day they woke up and said
the program wasn't needed any more.
None of this would have even happened had not Senator Udall and I
made that case repeatedly. The intelligence leadership knew that we
were not going to give it up, but that is what goes on if there isn't a
check on some of these kinds of procedures.
Senator Paul made mention of the fact that the intelligence
leadership has not exactly been straight with the American people on
these issues. I emphasize that we are not talking about the thousands
and thousands of law-abiding patriotic, dedicated, wonderful people who
work in the intelligence field. Day in and day out they do so much for
our country. We are so appreciative of all they do. They are the ones
who do the hard work, for example, to capture Bin Laden and day in and
day out to make us safer. But the intelligence leadership, on the other
hand, as noted by our colleague from Kentucky, has not always been
straight with the American people. I spent many months trying to
decipher what the former NSA Director meant when he said the government
doesn't collect any dossiers on millions of Americans.
I pointed out I had been on the Intelligence Committee for a long
time and I had never heard the term ``dossier'' used. So I tried to
learn more about it, used private opportunities and public
opportunities, and just couldn't get the information. So, finally, I
said: I have to ask this question in public.
On the Intelligence Committee you don't get but perhaps 20 or 25
minutes a year to ask questions in public, to hold intelligence leaders
accountable
[[Page S3337]]
on policy matters--not secret operations, because secret operations
have to stay secret, but policy matters.
So, after being stonewalled for many months--many months--I finally
said I have to ask this question in public. So to make sure no one
would feel ambushed, I sent the question to the Director of National
Intelligence, Mr. Clapper. I sent it a day ahead of time.
Then I didn't hear anything about its being inappropriate or in
violation of classification rules. So I asked in public: Does the
government collect any type of data at all on millions or hundreds of
millions of Americans? I was told no, and that answer was obviously
false. I tried to get it corrected, and we still couldn't get it
corrected.
Of course, then Mr. Snowden spoke out publicly and pointed that out.
Since that time, the Director of National Intelligence and his
representatives have given these five different explanations for why
that answer was given. So that is why you have to ask the hard
questions. You have to ask the hard questions about these issues.
I see my friend and colleague Senator Heinrich has joined us tonight.
I am so pleased that he has joined the Intelligence Committee. Senator
Heinrich is one of those Senators who subscribes to that view that I
just mentioned--that it is our job to ask the hard questions. It may be
uncomfortable. It is not designed in any way to convey disrespect. We
see it as our job to ask the hard questions.
I would be interested in my colleague's thoughts with respect to this
issue and to have him be given a chance to participate in this
colloquy.
The PRESIDING OFFICER (Mr. Johnson). Without objection, it is so
ordered.
Mr. HEINRICH. First, I thank my friend from Oregon and I recognize
the substantial leadership he has shown on this issue over the years.
Long before I came to the Intelligence Committee and long before Edward
Snowden began to steal documents, Senator Wyden, along with Senator
Mark Udall and others, were doing everything they could--without
disclosing classified information--to shine a light on the fact that
the U.S. Government was collecting massive volumes of data on millions
of law-abiding American citizens. My friend from Oregon deserves our
thanks for that leadership.
Now, after the bulk call data collection program was revealed to the
public, the government, frankly, defended it and defended it
vigorously. It took a number of months for the intelligence community
and the rest of the administration to take a deep breath and really
assess whether bulk metadata collection was necessary, whether it was
effective, and to consider whether there were other less intrusive,
more constitutionally grounded ways to accomplish these same goals.
Starting with the President's Review Group on Intelligence and
Communications Technologies, the administration began to agree that
``some of the authorities that were expanded or created in the
aftermath of September 11 unduly sacrifice fundamental interests in
individual liberty, personal privacy, and democratic governance.'' And
they recommended changing those authorities in order to ``strike a
better balance between the competing interests and providing for the
common defense and securing `the Blessings of Liberty to ourselves and
our Posterity.' ''
Following that, multiple efforts have been made to update and reform
FISA and to update and reform the USA PATRIOT Act. None of those have
been successful. But now we are forced to come to a resolution through
a combination of, frankly, procrastination, and, I think, misguided
hope that the American people would look the other way while the
government continued to vacuum up and store their personal information
and data as part of a program that even the intelligence community
acknowledges can be accomplished through less intrusive means.
I will be honest. The current USA FREEDOM Act isn't what I consider
perfect. For example, I prefer that it include strong reform of section
702 collection, but I accept that circumstances require us to be
pragmatic, require us to govern and move forward and to work with one
another in both parties to find compromise. That is what the USA
FREEDOM Act is. It is a product of bipartisan compromise.
That is why it passed the House of Representatives by a vote of 338
to 88. And let's be blunt, many of those who voted against it didn't do
so because they support bulk collection. They did so because they want
to see section 215 wither and die in its entirety. That is the
political reality we face today, and we need to accept it rather than
demanding a continuation of a program that the appeals court has
determined is illegal.
Mr. WYDEN. I thank my colleague for his statements and would just
want to explore this a little bit further. I hope that those who are
following this debate understand that my colleague from New Mexico is a
real rising star in the Senate. He and I would like the USA FREEDOM Act
to go further, and we both worked together on legislation that would
make additional reforms. Certainly, our colleagues on the Intelligence
Committee and here in the Senate can expect to see us continuing to
work together to advance these additional reforms over the coming
months and years. For now, the two of us are saying we ought to support
the USA FREEDOM Act and then move on--move on to other critical areas.
I particularly want to see closed what is called the backdoor search
loophole, which my colleague from New Mexico talked about. What this
means, colleagues, is that when you are engaged in a lawful search of
someone who is a threat overseas, pursuant to section 702 of the
Foreign Intelligence Surveillance Act, very often law-abiding Americans
can get swept up in this search and have their emails looked at.
This is a problem today, and my view is it is likely to be a growing
concern in the future because, increasingly, communications systems
around the world are becoming globally integrated, so the amount of
emails that are reviewed of Americans is likely to grow. But we can't
get that change here tonight. So, as my colleague from New Mexico has
mentioned, the USA FREEDOM Act would make several worthwhile reforms,
such as increasing transparency, reducing the government's reliance on
secret laws. But from my perspective, the centerpiece of it is ending
the bulk collection of Americans' information under the PATRIOT Act.
I have been trying to close this particular loophole for close to a
decade now. Some of our colleagues have said the bulk collection has
never been abused; that no one's rights have been violated. My own view
is--and I will ask what my colleague thinks--that vacuuming up all this
information, particularly when databases get violated all the time--we
have seen historically instances where there has been improper conduct
by the government. I believe dragnet surveillance violates the rights
of millions of our people every day.
Vacuuming up the private phone records of millions of Americans with
no connection to wrongdoing is simply a violation of their rights.
And vacuuming up Americans' email records, which I pointed out before
my colleague came to the floor--which he and our former colleague
Senator Udall and I battled--is surely a violation of the rights of
Americans as well. Colleagues, that wouldn't have been pointed out at
all--it wouldn't have been pointed out at all--unless Senator Udall and
I, with the help of our friend from New Mexico, hadn't been pushing
back on it. Finally, one day the government said: Well, we will get rid
of it because it wasn't effective. They got rid of it because they saw
they were going to get hard questions, the kinds of questions my friend
from New Mexico has been asking.
Now, with respect to the legality of this program, I know my
colleague and I actually filed a legal brief, along with our former
colleague Mark Udall, when the Court of Appeals for the Second Circuit
was examining that program. In our brief, it was argued that we were
able to debunk many of the claims that had been made about the
effectiveness of the program.
I think it would be helpful if my colleague from New Mexico laid out
some of that analysis here tonight. I would ask the Senator from New
Mexico to begin, and I would encourage him to start by addressing the
claim that the bulk collection of Americans' phone records is essential
for stopping terrorist attacks. My question to my colleague is, Is
there any evidence, any
[[Page S3338]]
real concrete evidence, to support that claim?
Mr. HEINRICH. I thank my friend from Oregon and begin by saying that
despite what we may have heard from talking heads on the Sunday shows
and on the cable news networks, the answer is no. There is simply no
evidence to support those claims.
When this mass surveillance was first revealed to the public 2 years
ago, the executive branch initially responded to questions like this by
claiming that various post-9/11 authorities had resulted in the
thwarting of approximately ``54 terrorist events in the U.S. homeland
and abroad.''
Now, a number of us, including my friend from Oregon and my former
colleague from Colorado, Senator Udall, began to pull on that thread to
really parse down and see just what the executive branch was talking
about. First, of those 54 terrorist events, it turned out that only 13
were actually focused in the United States. But more importantly, those
numbers conflated multiple different programs, including authorities
under section 215 and different authorities under section 702.
On June 19, 2013, my colleague from Oregon and Senator Udall pointed
out that ``it appears that the bulk phone records collection program
under section 215 of the USA PATRIOT Act played little or no role in
most of these disruptions. Saying that `these programs' have disrupted
`dozens of potential terrorist plots' is misleading if the bulk phone
records collection program is actually providing little or no unique
value.''
Of the original 54 instances the executive branch pointed to, every
one of them crumbled under scrutiny. None of them actually justified
the continued existence of the bulk collection program.
Let me take a moment, with the indulgence of our colleagues, and read
what was written by Judge Leon of the District Court for the District
of Columbia, when he ruled in the Klayman v. Obama case. This is a
little long, but I think it is important this be part of the official
record of this debate.
Judge Leon writes:
[T]he Government does not cite a single instance in which
analysis of the NSA's bulk metadata collection actually
stopped an imminent attack, or otherwise aided the Government
in achieving any objective that was time-sensitive in nature.
In fact, none of the three ``recent episodes'' cited by the
Government that supposedly ``illustrate the role that
telephony metadata analysis can play in preventing and
protecting against terrorist attack'' involved any apparent
urgency.
He continues to write that:
[]In the first example, the FBI learned of a terrorist plot
still ``in its early stages'' and investigated that plot
before turning to the metadata ``to ensure that all potential
connections were identified.'' []Assistant Director Holley
does not say that the metadata revealed any new information--
much less time-sensitive information--that had not already
come to light in the investigation up to that point.
The judge continues:
[]In the second example, it appears that the metadata
analysis was used only after the terrorist was arrested ``to
establish [his] foreign ties and put them in context with his
U.S. based planning efforts.'' []And in the third, the
metadata analysis ``revealed a previously unknown number for
[a] co-conspirator . . . and corroborated his connection to
[the target of the investigation] as well as to other U.S.-
based extremists.''
Continuing to quote Judge Leon:
[]Again, there is no indication that these revelations were
immediately useful or that they prevented an impending
attack. Assistant Director Holley even concedes that bulk
metadata analysis only ``sometimes provides information
earlier than the FBI's other investigative methods and
techniques.''
Finally, Judge Leon writes:
[]Given the limited record before me at this point in the
litigation--most notably, the utter lack of evidence that a
terrorist attack has ever been prevented because of searching
the NSA database was faster than other investigative
tactics--I have serious doubts about the efficacy of the
metadata collection program as a means of conducting time-
sensitive investigations in cases involving imminent threats
of terrorism.
That is where the judge leaves off. And I will turn back to the
Senator from Oregon to address the three cases we discussed in more
detail in our amicus brief to the Second Circuit.
Mr. WYDEN. I thank my colleague. The first of these examples--and
they really are kind of overblown examples about the effectiveness of
bulk collection--is the case of an individual named Najibullah Zazi.
Mr. Zazi was a known terrorism suspect, and a number of people have
suggested that bulk phone records collection was somehow essential to
stopping him because a query of the bulk phone records database for
numbers linked to Mr. Zazi returned a previously unknown number
belonging to another terrorism suspect.
However, since the government had already identified Zazi as a
terrorism suspect prior to querying the bulk phone records database, it
had all the evidence it needed to obtain the phone records of Zazi and
his associates using an individualized section 215 order or other legal
authorities.
In the second case, some have pointed to Mr. Moalin, the San Diego
man convicted of sending $8,500 to support al-Shabaab in Somalia. The
intelligence community has indicated that information from the bulk
phone records database ``established a connection between a phone
number known to be used by an extremist overseas . . . and an unknown
San Diego-based number'' that belonged to Mr. Moalin. Yet there are
ample existing authorities under which the United States can conduct
surveillance on a phone number known to be used by extremists overseas
and other phone numbers in contact with that phone number.
The argument that Mr. Moalin's case is an example of a unique value
of bulk phone records collection is just not accurate. My view is this
is yet another case that offers a misleading exaggeration with respect
to the effectiveness of bulk phone records collection.
Finally, several supporters of the bulk metadata program have claimed
that ``[i]f we had had [the bulk phone-records] program in place at the
time [of the September 11, 2001 attacks,] we would have been able to
identify'' the phone number of one of the hijackers, Khalid al-Mihdhar.
Just as in these other cases, however, the record indicates that Mr.
Mihdhar's phone number could also have been obtained by the government
using a variety of alternate means. Before September 11, the government
was surveilling a safe house in Yemen but failed to realize that Mr.
Mihdhar, who was in contact with the safe house, was actually inside
the United States. The government could have used any number of
authorities to determine whether anyone in our country was in contact
with the safe house it was already targeting. It didn't need a record
of every Americans' phone calls to establish that simple connection.
Mr. HEINRICH. I wish to expound on that point a bit, about the many
other ways the government can legitimately acquire phone records of
terrorism suspects, because I think this is a very important point to
understand the tools that already exist that have been very effective
and have proven themselves over time.
There are actually a number of legal authorities that can get the
same information without the government collecting billions of call
records--billions of call records that, in large part, belong to
innocent Americans.
For example, the Stored Communications Act permits the government to
obtain precisely the same call records that are now acquired through
bulk collection under section 215 when they are ``relevant and material
to an ongoing criminal investigation.''
Additionally, national security letters, which I point out do not
require a court order, can also be used by the government to obtain
call records for intelligence purposes.
Further, the government can also acquire telephony metadata on a
real-time basis by obtaining orders from either regular Federal courts
or the FISC for the installation of pen registers or trap-and-trace
devices.
Finally, individualized orders for phone records, as opposed to
orders authorizing broad bulk collection, can also be obtained under
section 215.
I think those of us early in this debate thought that was what was
going to occur under the PATRIOT Act in the first place. But that is
what the USA FREEDOM Act seeks to require while prohibiting the bulk
collection of millions of personal records. It even includes emergency
authorization authority for the government to get records prior to
getting court approval, subject to later court approval, in an
emergency.
The government can use any of these authorities without any more
evidence
[[Page S3339]]
than what is currently required to use the bulk phone records database,
with less impact, I would point out, on the privacy interests of
millions of innocent Americans.
I think at this point the Senator from Oregon and I have laid out our
case as to why this dragnet bulk surveillance program fails to make our
country measurably safer and why it should end. I am pleased to say
that a number of people have finally come around to our way of thinking
on this.
Mr. WYDEN. I thank my colleague. I will wrap up and then give the
last word to my friend from New Mexico on the subject. He is absolutely
right that some of the most authoritative leaders in our country--
experts on terror--have reached the same judgment we have. I made
mention of the President's Review Group on Intelligence and
Communications Technologies, and I really would encourage colleagues
who are following this debate and citizens across the country--that
report is available online, and it is available in our office. Page 104
of that report is very explicit. It says that the information that
would otherwise be obtained in collecting all of these phone records--
millions of phone records of law-abiding Americans, people such as Mike
Morell, former Acting Director of the CIA, and Richard Clark, who
served in two administrations--they said it could have been obtained
through conventional processes.
This is a program that is not making us safer. And it is not my
judgment that ought to be the last word; it should be that of people
like those I just quoted.
The Privacy and Civil Liberties Oversight Board's report on the
telephone records program said pretty much the same thing:
[T]he Section 215 program has shown minimal value in
safeguarding the nation from terrorism. Based on the
information provided to the Board, including classified
briefings and documentation, we have not identified a single
instance involving a threat to the United States in which the
program made a concrete difference in the outcome of a
counterterrorism investigation.
I will close by way of saying--and I touched on this before my friend
from New Mexico arrived--I would like to do a lot more than I believe
is likely to happen here quickly in the Senate. I do want to see us
finally throw in the dustbin of history this bulk phone records
collection program because it doesn't make us safer and it compromises
our liberty. But, as I indicated to my friend from New Mexico, I would
also like to close this backdoor search loophole in the FISA Act, which
is going to be a bigger problem in the days ahead given the evolution
of communications systems and how they have become globally integrated.
I will close by saying that one of the most important issues we are
going to have to tackle in the days ahead is going to deal with
encryption. Encryption, of course, is the encoding of data and messages
so that they cannot be easily read. The reason this will be an
enormously important issue--and my colleague and I have talked about
this--is because of the NSA overreach, the collection of all these
phone records of law-abiding people. A lot of our most innovative,
cutting-edge companies have found their customers raising real
questions about whether their products can be used safely, and a lot of
the purchasers who buy their products around the world are saying:
Maybe we shouldn't trust them. Maybe we should try to start taking
control over their servers and have local storage requirements and that
sort of thing. So what our companies did, because they saw the effect
of the overreach by the NSA, was they started to use encryption to
protect the data and messages of the consumers who buy their products.
Most recently, the head of the FBI, Mr. Comey, rather than try to
come back with a solution that protected both our privacy and our
security, he said he was interested in requiring companies to build
weaknesses into their products. Just think about that--requiring
companies to build weaknesses into their products. So the government--
which, in effect, caused this problem with the overreach--in effect,
rather than trying to find a solution that worked for both security and
liberty, said: We will start talking about requiring companies to
actually build weaknesses into their products.
I and others have pointed out that once you do that, hang on to your
hat. When the good guys have the keys, that is one thing, but when
companies are required to build weaknesses into their products, the bad
guys are going to get the keys in a hurry, too. And with all the cyber
hacking and the risks we already have, we ought to be really careful
about going where Mr. Comey, our FBI Director, has proposed to go.
But that is not for tonight. Tonight is not an occasion where we will
be able to, on a bipartisan basis, close the backdoor-search loophole
or where we will be able to come up with a sensible policy with respect
to encryption rather than requiring companies to actually build
weaknesses in their products. We will not be able to do that tonight.
But we will now have a chance here in the Senate to take steps that
have been bipartisan both here in the Senate and in the other body, in
the House of Representatives, to end the bulk phone records collection
program because it doesn't make us safer and it threatens our
liberties.
I always like to close by thinking about Ben Franklin, who said that
anybody who gives up their liberty to have security really doesn't
deserve either.
I am so pleased to have a chance to serve with my colleague from New
Mexico on the Intelligence Committee, who is going to be a thoughtful
advocate for these kinds of policies, in my view, for many years to
come. I thank him for his involvement tonight and would be happy to
give him the last word of our colloquy at this time.
I yield to my colleague.
Mr. HEINRICH. I thank my friend from Oregon. I think he could not
have chosen a more appropriate way to end than to reference what Ben
Franklin said so many years ago, that great quote that ``those who
would give up essential Liberty, to purchase a little temporary Safety,
deserve neither Liberty nor Safety.''
While many reforms still lie in front of us, I think, as we move
forward to approving the USA FREEDOM Act, we move a lot closer to the
balance that Ben Franklin articulated so well over 200 years ago. I
look forward to working with my colleague from Oregon and all of our
colleagues in achieving that balance and standing up for our
constituents.
Mr. WYDEN. Mr. President, I yield the floor.
Mr. LEAHY. Mr. President, we did not have to end up here, just hours
away from the midnight expiration of three surveillance authorities,
and having just moved to proceed to the USA FREEDOM Act.
I have tried since last year to move legislation through the Senate
to address these sunsets. In November, Senator Reid brought the USA
FREEDOM Act to the floor but the Republican leadership of the Senate
blocked debate on it. When they took over the Senate, they assured us
that they would send bills--including this one--through appropriate
committee process. There were promises that the new leadership would
not fill the amendment tree, and would use a transparent legislative
process. But not one of those promises has been fulfilled with respect
to any legislation dealing with the upcoming sunsets.
Once again this year, I proposed with Senator Lee a new version of
the USA FREEDOM Act. That bill had significant process in the House,
where it passed by an overwhelming margin earlier this month. And once
again, the bipartisan coalition here in the Senate tried to get the
bill passed. Two Fridays ago, the Senate Republican leadership did not
allow us to debate the bill.
Tonight, the Senate did the right thing by invoking cloture on the
motion to proceed to the USA FREEDOM Act. I am glad to see several
Republicans switched their votes. This is significant progress, but it
is late in coming.
We should have proceeded to this bill two Fridays ago. Had we done
so, we could have stayed here to do our work, considered amendments,
and passed the bill well in advance of tonight's sunset. Instead, we
are hours away from expiration and just now considering legislation
that many of us have been working on for years. Our intelligence
community needs predictability and certainty, not a manufactured
crisis.
If all Senators cooperate, we can finish this bill tonight. We can
consider a
[[Page S3340]]
handful of amendments under a time agreement, and pass this bill before
midnight. That would be the responsible thing to do.
Mr. BARRASSO. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Capito). Without objection, it is so
ordered.
Mr. McCONNELL. Madam President, I know of no further debate on the
motion.
The PRESIDING OFFICER. The question is on agreeing to the motion to
proceed.
The motion was agreed to.
____________________
[Congressional Record Volume 161, Number 85 (Sunday, May 31, 2015)]
[Senate]
[Pages S3340-S3341]
USA FREEDOM ACT OF 2015
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (H.R. 2048) to reform the authorities of the Federal
Government to require the production of certain business
records, conduct electronic surveillance, use pen registers
and trap and trace devices, and use other forms of
information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other
purposes.
Amendment No. 1449
(Purpose: In the nature of a substitute)
Mr. McCONNELL. Madam President, I have a substitute amendment at the
desk that I ask the clerk to report.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kentucky [Mr. McConnell] proposes an
amendment numbered 1449.
Mr. McCONNELL. I ask unanimous consent that the reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. McCONNELL. I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Amendment No. 1450 to Amendment No. 1449
Mr. McConnell. Madam President, I have an amendment at the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kentucky [Mr. McConnell] proposes an
amendment numbered 1450 to amendment No. 1449.
Mr. McCONNELL. Madam President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike Sec. 110(a) and insert the following:
(a) In General.--The amendments made by sections 101
through 103 shall take effect on the date that is 12 months
after the date of the enactment of this Act.
Mr. McCONNELL. I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Amendment No. 1451 to Amendment No. 1450
Mr. McCONNELL. I have a second-degree amendment at the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kentucky [Mr. McConnell] proposes an
amendment numbered 1451 to amendment No. 1450.
The amendment is as follows:
(Purpose: To improve the amendment)
At the end, add the following:
(b) Noneffect of Certain Provisions.--Section 401 of this
Act, relating to appointment of amicus curiae, shall have no
force or effect.
SEC. 110A. APPOINTMENT OF AMICUS CURIAE.
Section 103 (50 U.S.C. 1803) is amended by adding at the
end the following new subsections:
``(i) Amicus Curiae.--
``(1) Authorization.--A court established under subsection
(a) or (b) is authorized, consistent with the requirement of
subsection (c) and any other statutory requirement that the
court act expeditiously or within a stated time--
``(A) to appoint amicus curiae to--
``(i) assist the court in the consideration of any
application for an order or review that, in the opinion of
the court, presents a novel or significant interpretation of
the law; or
``(ii) provide technical expertise in any instance the
court considers appropriate; or
``(B) upon motion, to permit an individual or organization
leave to file an amicus curiae brief.
``(2) Designation.--The courts established by subsection
(a) and (b) shall each designate 1 or more individuals who
may be appointed to serve as amicus curiae and who are
determined to be eligible for access to classified national
security information necessary to participate in matters
before such courts (if such access is necessary for
participation in the matters for which they may be
appointed). In appointing an amicus curiae pursuant to
paragraph (1), the court may choose from among those so
designated.
``(3) Expertise.--An individual appointed as an amicus
curiae under paragraph (1) may be an individual who possesses
expertise on privacy and civil liberties, intelligence
collection, communications technology, or any other area that
may lend legal or technical expertise to the court.
``(4) Duties.--An amicus curiae appointed under paragraph
(1) to assist with the consideration of a covered matter
shall carry out the duties assigned by the appointing court.
That court may authorize the amicus curiae to review any
application, certification, petition, motion, or other
submission that the court determines is relevant to the
duties assigned by the court.
``(5) Notification.--A court established under subsection
(a) or (b) shall notify the Attorney General of each exercise
of the authority to appoint an amicus curiae under paragraph
(1).
``(6) Assistance.--A court established under subsection (a)
or (b) may request and receive (including on a non-
reimbursable basis) the assistance of the executive branch in
the implementation of this subsection.
``(7) Administration.--A court established under subsection
(a) or (b) may provide for the designation, appointment,
removal, training, or other support of an amicus curiae
appointed under paragraph (1) in a manner that is not
inconsistent with this subsection.
``(j) Review of FISA Court Decisions.--Following issuance
of an order under this Act, a court established under
subsection (a) shall certify for review to the court
established under subsection (b) any question of law that may
affect resolution of the matter in controversy that the court
determines warrants such review because of a need for
uniformity or because consideration by the court established
under subsection (b) would serve the interests of justice.
Upon certification of a question of law under this
subsection, the court established under subsection (b) may
give binding instructions or require the entire record to be
sent up for decision of the entire matter in controversy.
``(k) Review of FISA Court of Review Decisions.--
``(1) Certification.--For purposes of section 1254(2) of
title 28, United States Code, the court of review established
under subsection (b) shall be considered to be a court of
appeals.
``(2) Amicus curiae briefing.--Upon certification of an
application under paragraph (1), the Supreme Court of the
United States may appoint an amicus curiae designated under
subsection (i)(3), or any other person, to provide briefing
or other assistance.''.
Amendment No. 1452
Mr. McCONNELL. I have an amendment to the text proposed to be
stricken.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kentucky [Mr. McConnellL] proposes an
amendment numbered 1452 to the language proposed to be
stricken by amendment No. 1449.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. McCONNELL. I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Amendment No. 1453 to Amendment No. 1452
Mr. McCONNELL. I have a second-degree amendment at the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kentucky [Mr. McConnell] proposes an
amendment numbered 1453 to amendment No. 1452.
The amendment is as follows:
At the end of the amendment, add the following:
``This Act shall take effect 1 day after the date of
enactment.''
Cloture Motion
Mr. McCONNELL. Madam President, I have a cloture motion at the desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the
[[Page S3341]]
Standing Rules of the Senate, do hereby move to bring to a
close debate on H.R. 2048, an act to reform the authorities
of the Federal Government to require the production of
certain business records, conduct electronic surveillance,
use pen registers and trap and trace devices, and use other
forms of information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other
purposes.
Mitch McConnell, John Cornyn, Ron Johnson, Dean Heller,
Steve Daines, Cory Gardner, Johnny Isakson, Richard
Burr, Tim Scott, James Lankford, Jeff Flake, Mike Lee,
Lisa Murkowski, John Barrasso, Thom Tillis, Chuck
Grassley, Richard C. Shelby.
____________________
[Congressional Record Volume 161, Number 85 (Sunday, May 31, 2015)]
[Senate]
[Pages S3342-S3344]
TEXT OF AMENDMENTS ON MAY 22, 2015
SA 1440. Mr. SANDERS submitted an amendment intended to be proposed
by him to the bill H.R. 2048, to reform the authorities of the Federal
Government to require the production of certain business records,
conduct electronic surveillance, use pen registers and trap and trace
devices, and use other forms of information gathering for foreign
intelligence, counterterrorism, and criminal purposes, and for other
purposes; which was ordered to lie on the table; as follows:
At the end, add the following:
TITLE IX--COMMISSION ON PRIVACY RIGHTS IN THE DIGITAL AGE
SECTION 901. SHORT TITLE.
This title may be cited as the ``Commission on Privacy
Rights in the Digital Age Act of 2015''.
SEC. 902. FINDINGS.
Congress makes the following findings:
(1) Today, technology that did not exist 30 years ago
pervades every aspect of life in the United States.
(2) Nearly \2/3\ of adults in the United States own a
smartphone, and 43 percent of adults in the United States
rely solely on their cell phone for telephone use.
(3) 84 percent of households in the United States own a
computer and 73 percent of households in the United States
have a computer with an Internet broadband connection.
(4) Federal policies on privacy protection have not kept
pace with the rapid expansion of technology.
(5) Innovations in technology have led to the exponential
expansion of data collection by both the public and private
sectors.
(6) Consumers are often unaware of the collection of their
data and how their information can be collected, bought, and
sold by private companies.
SEC. 903. PURPOSE.
The purpose of this title is to establish, for a 2-year
period, a Commission on Privacy Rights in the Digital Age
to--
(1) examine--
(A) the ways in which public agencies and private companies
gather data on the people of the United States; and
(B) the ways in which that data is utilized, either
internally or externally; and
(2) make recommendations concerning potential policy
changes needed to safeguard the privacy of the people of the
United States.
SEC. 904. COMPOSITION OF THE COMMISSION.
(a) Establishment.--To carry out the purpose of this title,
there is established in the legislative branch a Commission
on Privacy Rights in the Digital Age (in this title referred
to as the ``Commission'').
(b) Composition.--The Commission shall be composed of 12
members, as follows:
(1) Four members appointed by the President, of whom--
(A) 2 shall be appointed from the executive branch of the
Government; and
(B) 2 shall be appointed from private life.
(2) Two members appointed by the majority leader of the
Senate, of whom--
(A) 1 shall be a Member of the Senate; and
(B) 1 shall be appointed from private life.
(3) Two members appointed by the minority leader of the
Senate, of whom--
(A) 1 shall be a Member of the Senate; and
(B) 1 shall be appointed from private life.
(4) Two members appointed by the Speaker of the House of
Representatives, of whom--
(A) 1 shall be a Member of the House; and
(B) 1 shall be appointed from private life.
(5) Two members appointed by the minority leader of the
House of Representatives, of whom--
(A) 1 shall be a Member of the House; and
(B) 1 shall be appointed from private life.
(c) Chairperson.--The Commission shall elect a Chairperson
and Vice-Chairperson from among its members.
[[Page S3343]]
(d) Meetings; Quorum; Vacancies.--
(1) Meetings.--After its initial meeting, the Commission
shall meet upon the call of the Chairperson or a majority of
its members.
(2) Quorum.--Seven members of the Commission shall
constitute a quorum.
(3) Vacancies.--Any vacancy in the Commission shall not
affect its powers but shall be filled in the same manner in
which the original appointment was made.
(e) Appointment of Members; Initial Meeting.--
(1) Appointment of members.--Each member of the Commission
shall be appointed not later than 60 days after the date of
enactment of this Act.
(2) Initial meeting.--On or after the date on which all
members of the Commission have been appointed, and not later
than 60 days after the date of enactment of this Act, the
Commission shall hold its initial meeting.
SEC. 905. DUTIES OF THE COMMISSION.
The Commission shall--
(1) conduct an investigation of relevant facts and
circumstances relating to the expansion of data collection
practices in the public, private, and national security
sectors, including implications for--
(A) surveillance;
(B) political, civil, and commercial rights of individuals
and corporate entities;
(C) employment practices, including hiring and firing; and
(D) credit availability and reporting; and
(2) submit to the President and Congress reports containing
findings, conclusions, and recommendations for corrective
measures relating to the facts and circumstances investigated
under paragraph (1), in accordance with section 911.
SEC. 906. POWERS OF THE COMMISSION.
(a) In General.--
(1) Hearings and evidence.--The Commission or, at its
direction, any subcommittee or member of the Commission, may,
for the purpose of carrying out this title--
(A) hold such hearings, sit and act at such times and
places, take such testimony, receive such evidence, and
administer such oaths as the Commission or such subcommittee
or member determines advisable; and
(B) subject to paragraph (2)(A), require, by subpoena or
otherwise, the attendance and testimony of such witnesses and
the production of such books, records, correspondence,
memoranda, papers, documents, tapes, and materials as the
Commission or such subcommittee or member determines
advisable.
(2) Subpoenas.--
(A) Issuance.--
(i) In general.--A subpoena may be issued under paragraph
(1) only--
(I) by the agreement of the Chairperson and the Vice
Chairperson; or
(II) by the affirmative vote of 8 members of the
Commission.
(ii) Signature.--Subject to clause (i), a subpoena issued
under paragraph (1) may--
(I) be issued under the signature of--
(aa) the Chairperson; or
(bb) a member designated by a majority of the Commission;
and
(II) be served by--
(aa) any person designated by the Chairperson; or
(bb) a member designated by a majority of the Commission.
(B) Enforcement.--
(i) In general.--In the case of contumacy or failure to
obey a subpoena issued under paragraph (1), the United States
district court for the judicial district in which the
subpoenaed person resides, is served, or may be found, or
where the subpoena is returnable, may issue an order
requiring such person to appear at any designated place to
testify or to produce documentary or other evidence.
(ii) Contempt of court.--Any failure to obey the order of
the court under clause (i) may be punished by the court as a
contempt of that court.
(3) Witness allowances and fees.--
(A) In general.--Section 1821 of title 28, United States
Code, shall apply to witnesses requested or subpoenaed to
appear at any hearing of the Commission.
(B) Source of funds.--The per diem and mileage allowances
for witnesses shall be paid from funds available to pay the
expenses of the Commission.
(b) Contracting.--The Commission may, to such extent and in
such amounts as are provided in appropriations Acts, enter
into contracts to enable the Commission to discharge its
duties under this title.
(c) Information From Federal Agencies.--
(1) In general.--The Commission may secure directly from
any Federal department or agency such information as the
Commission considers necessary to carry out this Act.
(2) Furnishing of information.--If the Chairperson, the
chairperson of any subcommittee created by a majority of the
Commission, or any member designated by a majority of the
Commission submits to a Federal department or agency a
request for information under paragraph (1), the head of the
department or agency shall, to the extent authorized by law,
furnish the information directly to the Commission.
(3) Receipt, handling, storage, and dissemination.--
Information furnished under paragraph (2) shall only be
received, handled, stored, and disseminated by members of the
Commission and its staff consistent with all applicable
statutes, regulations, and executive orders.
(d) Assistance From Federal Agencies.--
(1) General services administration.--The Administrator of
General Services shall provide to the Commission on a
reimbursable basis administrative support and other services
for the performance of the Commission's functions.
(2) Other departments and agencies.--In addition to the
assistance provided under paragraph (1), departments and
agencies of the United States may provide to the Commission
such services, funds, facilities, staff, and other support
services as the departments and agencies may determine
advisable and as authorized by law.
(e) Postal Services.--The Commission may use the United
States mails in the same manner and under the same conditions
as a department or agency of the United States.
SEC. 907. NONAPPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT.
(a) In General.--The Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to the Commission.
(b) Public Meetings and Release of Public Versions of
Reports.--The Commission shall--
(1) hold public hearings and meetings to the extent
appropriate; and
(2) release public versions of the reports required under
subsections (a) and (b) of section 911.
(c) Public Hearings.--Any public hearing of the Commission
shall be conducted in a manner consistent with the protection
of information provided to or developed for or by the
Commission as required by any applicable statute, regulation,
or executive order.
SEC. 908. STAFF OF COMMISSION.
(a) In General.--
(1) Appointment and compensation.--The Chairperson, in
consultation with the Vice Chairperson and in accordance with
rules agreed upon by the Commission, may appoint and fix the
compensation of an executive director and such other
personnel as may be necessary to enable the Commission to
carry out the functions of the Commission, without regard to
the provisions of title 5, United States Code, governing
appointments in the competitive service, and without regard
to the provisions of chapter 51 and subchapter III of chapter
53 of that title relating to classification and General
Schedule pay rates, except that no rate of pay fixed under
this paragraph may exceed the equivalent of that payable for
a position at level V of the Executive Schedule under section
5316 of title 5, United States Code.
(2) Personnel as federal employees.--
(A) In general.--The executive director and any personnel
of the Commission who are employees shall be employees under
section 2105 of title 5, United States Code, for purposes of
chapters 63, 81, 83, 84, 85, 87, 89, 89A, 89B, and 90 of that
title.
(B) Members of commission.--Subparagraph (A) shall not be
construed to apply to members of the Commission.
(b) Detailees.--Any Federal Government employee may be
detailed to the Commission without reimbursement from the
Commission, and such detailee shall retain the rights,
status, and privileges of his or her regular employment
without interruption.
(c) Consultant Services.--The Commission may procure the
services of experts and consultants in accordance with
section 3109 of title 5, United States Code, but at rates not
to exceed the daily rate paid a person occupying a position
at level IV of the Executive Schedule under section 5315 of
that title.
SEC. 909. COMPENSATION AND TRAVEL EXPENSES.
(a) Compensation.--Each member of the Commission who is not
an officer or employee of the Federal Government may be
compensated at not to exceed the daily equivalent of the
annual rate of basic pay in effect for a position at level IV
of the Executive Schedule under section 5315 of title 5,
United States Code, for each day during which that member is
engaged in the actual performance of the duties of the
Commission.
(b) Travel Expenses.--While away from their homes or
regular places of business in the performance of services for
the Commission, members of the Commission shall be allowed
travel expenses, including per diem in lieu of subsistence,
in the same manner as persons employed intermittently in the
Government service are allowed expenses under section 5703 of
title 5, United States Code.
SEC. 910. SECURITY CLEARANCES FOR COMMISSION MEMBERS AND
STAFF.
The appropriate departments or agencies of the Federal
Government shall cooperate with the Commission in
expeditiously providing to the members and staff of the
Commission appropriate security clearances to the extent
possible under applicable procedures and requirements, and no
person shall be provided with access to classified
information under this title without the appropriate security
clearances.
SEC. 911. REPORTS OF COMMISSION; TERMINATION.
(a) Interim Reports.--The Commission shall submit to the
President and Congress interim reports containing such
findings, conclusions, and recommendations for corrective
measures as have been agreed to by a majority of Commission
members.
(b) Final Report.--Not later than 2 years after the date of
enactment of this Act, the Commission shall submit to the
President and Congress a final report containing such
findings, conclusions, and recommendations
[[Page S3344]]
for corrective measures as have been agreed to by a majority
of Commission members.
(c) Classified Information.--Each report submitted under
subsection (a) or (b) shall be in unclassified form, but may
include a classified annex.
(d) Termination.--
(1) In general.--The Commission, and all the authorities
under this title, shall terminate 60 days after the date on
which Commission submits the final report under subsection
(b).
(2) Administrative activities before termination.--The
Commission may use the 60-day period referred to in paragraph
(1) for the purpose of concluding its activities, including
providing testimony to committees of Congress concerning its
reports and disseminating the final report.
SEC. 912. FUNDING.
(a) Authorization of Appropriations.--There are authorized
to be appropriated such sums as are necessary to carry out
this title.
(b) Duration of Availability.--Amounts made available to
the Commission under subsection (a) shall remain available
until the termination of the Commission.
____________________
[Congressional Record Volume 161, Number 85 (Sunday, May 31, 2015)]
[Senate]
[Pages S3344-S3371]
TEXT OF AMENDMENTS
SA 1441. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
On page 4, strike line 20 and all that follows through page
5, line 4, and insert the following:
protect against international terrorism, a statement of facts
showing that there is probable cause to believe that--
``(i) the call detail records sought to be produced based
on the specific selection term required under subparagraph
(A) are relevant to such investigation; and
``(ii) such specific selection term
______
SA 1442. Mr. PAUL submitted an amendment intended to be proposed by
him to the bill H.R. 2048, to reform the authorities of the Federal
Government to require the production of certain business records,
conduct electronic surveillance, use pen registers and trap and trace
devices, and use other forms of information gathering for foreign
intelligence, counterterrorism, and criminal purposes, and for other
purposes; which was ordered to lie on the table; as follows:
On page 29, line 6, strike the quotation marks and the
second period and insert the following:
``(iii) Limitation to acts of terrorism and espionage.--
Notwithstanding clauses (i) and (ii), no information obtained
or evidence derived from a part of certification or procedure
relating to which the Court orders a correction of a
deficiency under subparagraph (B) shall be disclosed in a
criminal case by the Government unless the defendant is
charged with an act of espionage under chapter 37 of title
18, United States Code, or an act of terrorism (as defined
under section 3077 of title 18, United States Code).''.
______
SA 1443. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
SEC. ___. REQUIREMENT OF NOTICE TO DEFENDANTS.
(a) In General.--
(1) Electronic surveillance.--Section 106 (50 U.S.C. 1806)
is amended by striking subsections (c) and (d) and inserting
the following:
``(c)(1) Whenever the Government initiates a proceeding in
or before any court, department, officer, agency, regulatory
body, or other authority of the United States against a
person, the Government shall notify the person and the court
or authority of--
``(A) each title of this Act the Government relied on to
obtain the communications of the person or information about
the communications or activities of the person, which
contributed in any manner to the investigation of the person;
and
``(B) each type of communication or information obtained
under this Act, as described in the order or directive relied
upon to obtain the communication or information.
``(2) The Government shall provide the notification
required under paragraph (1) before or within a reasonable
time after the commencement of the proceeding.
``(d) The notification requirement under subsection (c)
shall apply to any State or political subdivision thereof
whenever the State or political subdivision initiates a
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the State or
political subdivision against a person, in the same manner
such subsection applies to the Government in connection with
a proceeding against a person.''.
(2) Physical searches.--Section 305 (50 U.S.C. 1825) is
amended by striking subsections (d) and (e) and inserting the
following:
``(d)(1) Whenever the Government initiates a proceeding in
or before any court, department, officer, agency, regulatory
body, or other authority of the United States against a
person, the Government shall notify the person and the court
or authority of--
``(A) each title of this Act the Government relied on to
obtain the communications of the person or information about
the communications or activities of the person, which
contributed in any manner to the investigation of the person;
and
``(B) each type of communication or information obtained
under this Act, as described in the order or directive relied
upon to obtain the communication or information.
``(2) The Government shall provide the notification
required under paragraph (1) before or within a reasonable
time after the commencement of the proceeding.
``(e) The notification requirement under subsection (d)
shall apply to any State or political subdivision thereof
whenever the State or political subdivision initiates a
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the State or
political subdivision against a person, in the same manner
such subsection applies to the Government in connection with
a proceeding against a person.''.
(3) Pen register and trap and trace devices.--Section 405
(50 U.S.C. 1845) is amended by striking subsections (c) and
(d) and inserting the following:
``(c)(1) Whenever the Government initiates a proceeding in
or before any court, department, officer, agency, regulatory
body, or other authority of the United States against a
person, the Government shall notify the person and the court
or authority of--
``(A) each title of this Act the Government relied on to
obtain the communications of the person or information about
the communications or activities of the person, which
contributed in any manner to the investigation of the person;
and
``(B) each type of communication or information obtained
under this Act, as described in the order or directive relied
upon to obtain the communication or information.
``(2) The Government shall provide the notification
required under paragraph (1) before or within a reasonable
time after the commencement of the proceeding.
``(d) The notification requirement under subsection (c)
shall apply to any State or political subdivision thereof
whenever the State or political subdivision initiates a
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the State or
political subdivision against a person, in the same manner
such subsection applies to the Government in connection with
a proceeding against a person.''.
(b) Tangible Things.--Section 501 (50 U.S.C. 1861), as
amended by section 107 of this Act, is amended by adding at
the end the following:
``(l) Suppression of Evidence.--
``(1) Motion to suppress.--
``(A) In general.--Any person against whom evidence
obtained or derived from the production of tangible things
under this title is to be, or has been, introduced or
otherwise used or disclosed in any trial, hearing, or other
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United
States, a State, or a political subdivision thereof, may move
to suppress the evidence obtained or derived from the
production of the communications of the person or information
about the communications or activities of the person on the
grounds that--
``(i) the information was unlawfully acquired; or
``(ii) the production was not made in accordance with an
order of authorization or approval.
``(B) Timing.--A motion described in subparagraph (A) shall
be made before the trial, hearing, or other proceeding
commences, unless there was no opportunity to make such a
motion or the person was not aware of the grounds of the
motion.
``(2) In camera and ex parte review by court.--
``(A) Definition.--In this paragraph, the term `covered
circumstance' means--
``(i) that--
``(I) a court or authority receives a notice under
subsection (c) or (d) of section 106, subsection (d) or (e)
of section 305, or subsection (c) or (d) of section 405 that
relates to the production of tangible things under this
title;
``(II) a motion is made under paragraph (1) of this
subsection; or
``(III) a motion or request is made by a person under any
other statute or rule of the United States or any State
before a court or authority of the United States or any State
to--
``(aa) discover or obtain applications or orders or other
materials relating to the production of tangible things under
this title; or
``(bb) discover, obtain, or suppress evidence or
information obtained or derived from the
[[Page S3345]]
production of tangible things under this title; and
``(ii) that the Attorney General files an affidavit under
oath that disclosure or an adversary hearing would harm the
national security of the United States.
``(B) Authority.--In a covered circumstance, the applicable
district court of the United States, or if notice is given to
or the motion is made before another authority, the district
court of the United States in the same judicial district as
the authority, shall review in camera and ex parte the
application, order, and such other materials relating to the
production of tangible things under this title as may be
necessary to determine whether the production was lawfully
authorized and conducted.
``(C) Disclosure.--In making a determination under
subparagraph (B), the court may disclose to the applicable
person, under appropriate security procedures and protective
orders, portions of the application, order, or other
materials relating to the production only if such disclosure
would aid the court in making an accurate determination of
the legality of the surveillance.
``(3) Suppression of evidence; denial of motion.--If a
district court of the United States determines under
paragraph (2) that the production of tangible things under
this title was not lawfully authorized or conducted, the
court shall, in accordance with the requirements of law,
suppress the evidence which was unlawfully obtained or
derived from the production or otherwise grant the motion of
the movant. If the court determines that the production was
lawfully authorized and conducted, it shall deny the motion
of the movant except to the extent that due process requires
discovery or disclosure.
``(4) Finality of orders.--An order granting a motion or
request under paragraph (3), a determination under this
subsection that the production of tangible things under this
title was not lawfully authorized or conducted, and an order
of a district court of the United States requiring review or
granting disclosure of an application, order, or other
material relating to the production of tangible things under
this title shall be a final order and binding upon all courts
of the United States and the several States, except a United
States court of appeals and the Supreme Court of the United
States.
``(5) Destruction of unlawfully obtained evidence.--If a
district court of the United States determines under
paragraph (2) that the production of tangible things under
this title was not lawfully authorized or conducted, the
determination is a final order under paragraph (4), and the
district court finds there is no reason to believe that
destruction 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, the Government shall destroy all copies of the
tangible things produced under this title in the possession
of the Government by not later than 30 days after the date of
issuance of the final court order.''.
______
SA 1444. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
On page 17, line 4, strike ``an electronic'' and all that
follows through ``Code)'' on line 9 and insert ``a
corporation or other legal entity''.
______
SA 1445. Mr. PAUL submitted an amendment intended to be proposed by
him to the bill H.R. 2048, to reform the authorities of the Federal
Government to require the production of certain business records,
conduct electronic surveillance, use pen registers and trap and trace
devices, and use other forms of information gathering for foreign
intelligence, counterterrorism, and criminal purposes, and for other
purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. __. COURT APPROVAL FOR NATIONAL SECURITY LETTERS.
(a) In General.--Section 2709(b) of title 18, United States
Code, is amended--
(1) in the subsection heading, by striking ``Required
Certification'' and inserting ``Request Upon Authorization by
Court''; and
(2) in the matter preceding paragraph (1), by striking
``The Director'' and inserting ``If authorized by an order of
a Federal court (other than the court established under
section 103(a) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(a))), the Director''.
(b) Right to Financial Privacy Act of 1978.--Section
1114(a)(5)(A) of the Right to Financial Privacy Act of 1978
(12 U.S.C. 3414(a)(5)(A)) is amended by adding at the end the
following: ``A certification may only be made under this
subparagraph if authorized by an order of a Federal court
(other than the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(a))).''.
(c) Fair Credit Reporting Act.--The Fair Credit Reporting
Act (15 U.S.C. 1681 et seq.) is amended--
(1) in section 626 (15 U.S.C. 1681u)--
(A) in subsection (a), in the second sentence, by inserting
``if authorized by an order of a Federal court (other than
the court established under section 103(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)))
and'' after ``The Director or the Director's designee may
make such a certification only''; and
(B) in subsection (b), in the second sentence, by inserting
``if authorized by an order of a Federal court (other than
the court established under section 103(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)))
and'' after ``The Director or the Director's designee may
make such a certification only''; and
(2) in section 627(b) (15 U.S.C. 1681v(b))--
(A) in the subsection heading, by striking ``Form of'' and
inserting ``Requirements for''; and
(B) by striking ``described in subsection (a) shall be
signed'' and inserting the following: ``described in
subsection (a)--
``(1) may only be made if authorized by an order of a
Federal court (other than the court established under section
103(a) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1803(a))); and
``(2) shall be signed''.
______
SA 1446. Mr. PAUL submitted an amendment intended to be proposed by
him to the bill H.R. 2048, to reform the authorities of the Federal
Government to require the production of certain business records,
conduct electronic surveillance, use pen registers and trap and trace
devices, and use other forms of information gathering for foreign
intelligence, counterterrorism, and criminal purposes, and for other
purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. FOURTH AMENDMENT PRESERVATION AND PROTECTION.
(a) Short Title.--This section may be cited as the ``Fourth
Amendment Preservation and Protection Act of 2015''.
(b) Findings.--Congress finds that the right under the
Fourth Amendment to the Constitution of the United States of
the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures is
violated when the Federal Government or a State or local
government acquires information voluntarily relinquished by a
person to another party for a limited business purpose
without the express informed consent of the person to the
specific request by the Federal Government or a State or
local government or a warrant, upon probable cause, supported
by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
(c) Definition.--In this section, the term ``system of
records'' means any group of records from which information
is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular
associated with the individual.
(d) Prohibition.--
(1) In general.--Except as provided in paragraph (2), the
Federal Government and a State or local government may not
obtain or seek to obtain information relating to an
individual or group of individuals held by a third party in a
system of records, and no such information shall be
admissible in a criminal prosecution in a court of law.
(2) Exception.--The Federal Government or a State or local
government may obtain, and a court may admit, information
relating to an individual held by a third party in a system
of records if--
(A) the individual whose name or identification information
the Federal Government or State or local government is using
to access the information provides express and informed
consent to the search; or
(B) the Federal Government or State or local government
obtains a warrant, upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
______
SA 1447. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
[[Page S3346]]
SEC. ___. CLARIFICATION ON PROHIBITION ON SEARCHING OF
COLLECTIONS OF COMMUNICATIONS TO CONDUCT
WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF
UNITED STATES PERSONS.
Section 702(b) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1881a(b)) is amended--
(1) by redesignating paragraphs (1) through (5) as
subparagraphs (A) through (E), respectively, and indenting
such subparagraphs, as so redesignated, an additional two ems
from the left margin;
(2) by striking ``An acquisition'' and inserting the
following:
``(1) In general.--An acquisition''; and
(3) by adding at the end the following:
``(2) Clarification on prohibition on searching of
collections of communications of united states persons.--
``(A) In general.--Except as provided in subparagraph (B),
no officer or employee of the United States may conduct a
search of a collection of communications acquired under this
section in an effort to find communications of a particular
United States person (other than a corporation).
``(B) Concurrent authorization and exception for emergency
situations.--Subparagraph (A) shall not apply to a search for
communications related to a particular United States person
if--
``(i) such United States person is the subject of an order
or emergency authorization authorizing electronic
surveillance or physical search under section 105, 304, 703,
704, or 705 of this Act, or under title 18, United States
Code, for the effective period of that order;
``(ii) the entity carrying out the search has a reasonable
belief that the life or safety of such United States person
is threatened and the information is sought for the purpose
of assisting that person; or
``(iii) such United States person has consented to the
search.''.
______
SA 1448. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
SEC. __. PROHIBITION ON DATA SECURITY VULNERABILITY MANDATES.
(a) In General.--Except as provided in subsection (b), no
agency may mandate that a manufacturer, developer, or seller
of covered products design or alter the security functions in
its product or service to allow the surveillance of any user
of such product or service, or to allow the physical search
of such product, by any agency.
(b) Exception.--Subsection (a) shall not apply to mandates
authorized under the Communications Assistance for Law
Enforcement Act (47 U.S.C. 1001 et seq.).
(c) Definitions.--In this section--
(1) the term ``agency'' has the meaning given the term in
section 3502 of title 44, United States Code; and
(2) the term ``covered product'' means any computer
hardware, computer software, or electronic device that is
made available to the general public.
______
SA 1449. Mr. McCONNELL (for himself and Mr. Burr) proposed an
amendment to the bill H.R. 2048, to reform the authorities of the
Federal Government to require the production of certain business
records, conduct electronic surveillance, use pen registers and trap
and trace devices, and use other forms of information gathering for
foreign intelligence, counterterrorism, and criminal purposes, and for
other purposes; as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Uniting
and Strengthening America by Fulfilling Rights and Ensuring
Effective Discipline Over Monitoring Act of 2015'' or the
``USA FREEDOM Act of 2015''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
1. Short title; table of contents.
2. Amendments to the Foreign Intelligence Surveillance Act of 1978.
TITLE I--FISA BUSINESS RECORDS REFORMS
101. Additional requirements for call detail records.
102. Emergency authority.
103. Prohibition on bulk collection of tangible things.
104. Judicial review.
105. Liability protection.
106. Compensation for assistance.
107. Notice to the Attorney General on changes in retention of call
detail records.
108. Definitions.
109. Inspector General reports on business records orders.
110. Effective date.
111. Rule of construction.
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
201. Prohibition on bulk collection.
202. Privacy procedures.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
301. Limits on use of unlawfully obtained information.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
401. Appointment of amicus curiae.
402. Declassification of decisions, orders, and opinions.
TITLE V--NATIONAL SECURITY LETTER REFORM
501. Prohibition on bulk collection.
502. Limitations on disclosure of national security letters.
503. Judicial review.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
601. Additional reporting on orders requiring production of business
records; business records compliance reports to Congress.
602. Annual reports by the Government.
603. Public reporting by persons subject to FISA orders.
604. Reporting requirements for decisions, orders, and opinions of the
Foreign Intelligence Surveillance Court and the Foreign
Intelligence Surveillance Court of Review.
605. Submission of reports under FISA.
TITLE VII--ENHANCED NATIONAL SECURITY PROVISIONS
701. Emergencies involving non-United States persons.
702. Preservation of treatment of non-United States persons traveling
outside the United States as agents of foreign powers.
703. Improvement to investigations of international proliferation of
weapons of mass destruction.
704. Increase in penalties for material support of foreign terrorist
organizations.
705. Sunsets.
TITLE VIII--SAFETY OF MARITIME NAVIGATION AND NUCLEAR TERRORISM
CONVENTIONS IMPLEMENTATION
Subtitle A--Safety of Maritime Navigation
801. Amendment to section 2280 of title 18, United States Code.
802. New section 2280a of title 18, United States Code.
803. Amendments to section 2281 of title 18, United States Code.
804. New section 2281a of title 18, United States Code.
805. Ancillary measure.
Subtitle B--Prevention of Nuclear Terrorism
811. New section 2332i of title 18, United States Code.
812. Amendment to section 831 of title 18, United States Code.
SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT OF 1978.
Except as otherwise expressly provided, whenever in this
Act an amendment or repeal is expressed in terms of an
amendment to, or a repeal of, a section or other provision,
the reference shall be considered to be made to a section or
other provision of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.).
TITLE I--FISA BUSINESS RECORDS REFORMS
SEC. 101. ADDITIONAL REQUIREMENTS FOR CALL DETAIL RECORDS.
(a) Application.--Section 501(b)(2) (50 U.S.C. 1861(b)(2))
is amended--
(1) in subparagraph (A)--
(A) in the matter preceding clause (i), by striking ``a
statement'' and inserting ``in the case of an application
other than an application described in subparagraph (C)
(including an application for the production of call detail
records other than in the manner described in subparagraph
(C)), a statement''; and
(B) in clause (iii), by striking ``; and'' and inserting a
semicolon;
(2) by redesignating subparagraphs (A) and (B) as
subparagraphs (B) and (D), respectively; and
(3) by inserting after subparagraph (B) (as so
redesignated) the following new subparagraph:
``(C) in the case of an application for the production on
an ongoing basis of call detail records created before, on,
or after the date of the application relating to an
authorized investigation (other than a threat assessment)
conducted in accordance with subsection (a)(2) to protect
against international terrorism, a statement of facts showing
that--
``(i) there are reasonable grounds to believe that the call
detail records sought to be produced based on the specific
selection term required under subparagraph (A) are relevant
to such investigation; and
``(ii) there is a reasonable, articulable suspicion that
such specific selection term is associated with a foreign
power engaged in international terrorism or activities in
preparation therefor, or an agent of a foreign power engaged
in international terrorism or activities in preparation
therefor; and''.
(b) Order.--Section 501(c)(2) (50 U.S.C. 1861(c)(2)) is
amended--
[[Page S3347]]
(1) in subparagraph (D), by striking ``; and'' and
inserting a semicolon;
(2) in subparagraph (E), by striking the period and
inserting ``; and''; and
(3) by adding at the end the following new subparagraph:
``(F) in the case of an application described in subsection
(b)(2)(C), shall--
``(i) authorize the production on a daily basis of call
detail records for a period not to exceed 180 days;
``(ii) provide that an order for such production may be
extended upon application under subsection (b) and the
judicial finding under paragraph (1) of this subsection;
``(iii) provide that the Government may require the prompt
production of a first set of call detail records using the
specific selection term that satisfies the standard required
under subsection (b)(2)(C)(ii);
``(iv) provide that the Government may require the prompt
production of a second set of call detail records using
session-identifying information or a telephone calling card
number identified by the specific selection term used to
produce call detail records under clause (iii);
``(v) provide that, when produced, such records be in a
form that will be useful to the Government;
``(vi) direct each person the Government directs to produce
call detail records under the order to furnish the Government
forthwith all information, facilities, or technical
assistance necessary to accomplish the production in such a
manner as will protect the secrecy of the production and
produce a minimum of interference with the services that such
person is providing to each subject of the production; and
``(vii) direct the Government to--
``(I) adopt minimization procedures that require the prompt
destruction of all call detail records produced under the
order that the Government determines are not foreign
intelligence information; and
``(II) destroy all call detail records produced under the
order as prescribed by such procedures.''.
SEC. 102. EMERGENCY AUTHORITY.
(a) Authority.--Section 501 (50 U.S.C. 1861) is amended by
adding at the end the following new subsection:
``(i) Emergency Authority for Production of Tangible
Things.--
``(1) Notwithstanding any other provision of this section,
the Attorney General may require the emergency production of
tangible things if the Attorney General--
``(A) reasonably determines that an emergency situation
requires the production of tangible things before an order
authorizing such production can with due diligence be
obtained;
``(B) reasonably determines that the factual basis for the
issuance of an order under this section to approve such
production of tangible things exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under this section at the time the
Attorney General requires the emergency production of
tangible things that the decision has been made to employ the
authority under this subsection; and
``(D) makes an application in accordance with this section
to a judge having jurisdiction under this section as soon as
practicable, but not later than 7 days after the Attorney
General requires the emergency production of tangible things
under this subsection.
``(2) If the Attorney General requires the emergency
production of tangible things under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this section for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving the
production of tangible things under this subsection, the
production shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time the Attorney
General begins requiring the emergency production of such
tangible things, whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) If such application for approval is denied, or in any
other case where the production of tangible things is
terminated and no order is issued approving the production,
no information obtained or evidence derived from such
production 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 a political subdivision
thereof, and no information concerning any United States
person acquired from such production 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.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''.
(b) Conforming Amendment.--Section 501(d) (50 U.S.C.
1861(d)) is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by striking
``pursuant to an order'' and inserting ``pursuant to an order
issued or an emergency production required'';
(B) in subparagraph (A), by striking ``such order'' and
inserting ``such order or such emergency production''; and
(C) in subparagraph (B), by striking ``the order'' and
inserting ``the order or the emergency production''; and
(2) in paragraph (2)--
(A) in subparagraph (A), by striking ``an order'' and
inserting ``an order or emergency production''; and
(B) in subparagraph (B), by striking ``an order'' and
inserting ``an order or emergency production''.
SEC. 103. PROHIBITION ON BULK COLLECTION OF TANGIBLE THINGS.
(a) Application.--Section 501(b)(2) (50 U.S.C. 1861(b)(2)),
as amended by section 101(a) of this Act, is further amended
by inserting before subparagraph (B), as redesignated by such
section 101(a) of this Act, the following new subparagraph:
``(A) a specific selection term to be used as the basis for
the production of the tangible things sought;''.
(b) Order.--Section 501(c) (50 U.S.C. 1861(c)) is amended--
(1) in paragraph (2)(A), by striking the semicolon and
inserting ``, including each specific selection term to be
used as the basis for the production;''; and
(2) by adding at the end the following new paragraph:
``(3) No order issued under this subsection may authorize
the collection of tangible things without the use of a
specific selection term that meets the requirements of
subsection (b)(2).''.
SEC. 104. JUDICIAL REVIEW.
(a) Minimization Procedures.--
(1) Judicial review.--Section 501(c)(1) (50 U.S.C.
1861(c)(1)) is amended by inserting after ``subsections (a)
and (b)'' the following: ``and that the minimization
procedures submitted in accordance with subsection (b)(2)(D)
meet the definition of minimization procedures under
subsection (g)''.
(2) Rule of construction.--Section 501(g) (50 U.S.C.
1861(g)) is amended by adding at the end the following new
paragraph:
``(3) Rule of construction.--Nothing in this subsection
shall limit the authority of the court established under
section 103(a) to impose additional, particularized
minimization procedures with regard to the production,
retention, or dissemination of nonpublicly available
information concerning unconsenting United States persons,
including additional, particularized procedures related to
the destruction of information within a reasonable time
period.''.
(3) Technical and conforming amendment.--Section 501(g)(1)
(50 U.S.C. 1861(g)(1)) is amended--
(A) by striking ``Not later than 180 days after the date of
the enactment of the USA PATRIOT Improvement and
Reauthorization Act of 2005, the'' and inserting ``The''; and
(B) by inserting after ``adopt'' the following: ``, and
update as appropriate,''.
(b) Orders.--Section 501(f)(2) (50 U.S.C. 1861(f)(2)) is
amended--
(1) in subparagraph (A)(i)--
(A) by striking ``that order'' and inserting ``the
production order or any nondisclosure order imposed in
connection with the production order''; and
(B) by striking the second sentence; and
(2) in subparagraph (C)--
(A) by striking clause (ii); and
(B) by redesignating clause (iii) as clause (ii).
SEC. 105. LIABILITY PROTECTION.
Section 501(e) (50 U.S.C. 1861(e)) is amended to read as
follows:
``(e)(1) No cause of action shall lie in any court against
a person who--
``(A) produces tangible things or provides information,
facilities, or technical assistance in accordance with an
order issued or an emergency production required under this
section; or
``(B) otherwise provides technical assistance to the
Government under this section or to implement the amendments
made to this section by the USA FREEDOM Act of 2015.
``(2) A production or provision of information, facilities,
or technical assistance described in paragraph (1) shall not
be deemed to constitute a waiver of any privilege in any
other proceeding or context.''.
SEC. 106. COMPENSATION FOR ASSISTANCE.
Section 501 (50 U.S.C. 1861), as amended by section 102 of
this Act, is further amended by adding at the end the
following new subsection:
``(j) Compensation.--The Government shall compensate a
person for reasonable expenses incurred for--
``(1) producing tangible things or providing information,
facilities, or assistance in accordance with an order issued
with respect to an application described in subsection
(b)(2)(C) or an emergency production under subsection (i)
that, to comply with subsection (i)(1)(D), requires an
application described in subsection (b)(2)(C); or
``(2) otherwise providing technical assistance to the
Government under this section or to implement the amendments
made to this section by the USA FREEDOM Act of 2015.''.
SEC. 107. NOTICE TO THE ATTORNEY GENERAL ON CHANGES IN
RETENTION OF CALL DETAIL RECORDS.
Section 501 (50 U.S.C. 1861), as amended by section 106 of
this Act, is amended by adding at the end the following new
subsection:
``(k) Prospective Changes to Existing Practices Related to
Call Detail Records.--
[[Page S3348]]
``(1) In general.--Consistent with subsection (c)(2)(F), an
electronic communication service provider that has been
issued an order to produce call detail records pursuant to an
order under subsection (c) shall notify the Attorney General
if that service provider intends to retain its call detail
records for a period less than 18 months.
``(2) Timing of notice.--A notification under paragraph (1)
shall be made not less than 180 days prior to the date such
electronic communications service provider intends to
implement a policy to retain such records for a period less
than 18 months.''.
SEC. 108. DEFINITIONS.
Section 501 (50 U.S.C. 1861), as amended by section 107 of
this Act, is further amended by adding at the end the
following new subsection:
``(l) Definitions.--In this section:
``(1) In general.--The terms `foreign power', `agent of a
foreign power', `international terrorism', `foreign
intelligence information', `Attorney General', `United States
person', `United States', `person', and `State' have the
meanings provided those terms in section 101.
``(2) Address.--The term `address' means a physical address
or electronic address, such as an electronic mail address or
temporarily assigned network address (including an Internet
protocol address).
``(3) Call detail record.--The term `call detail record'--
``(A) means session-identifying information (including an
originating or terminating telephone number, an International
Mobile Subscriber Identity number, or an International Mobile
Station Equipment Identity number), a telephone calling card
number, or the time or duration of a call; and
``(B) does not include--
``(i) the contents (as defined in section 2510(8) of title
18, United States Code) of any communication;
``(ii) the name, address, or financial information of a
subscriber or customer; or
``(iii) cell site location or global positioning system
information.
``(4) Specific selection term.--
``(A) Tangible things.--
``(i) In general.--Except as provided in subparagraph (B),
a `specific selection term'--
``(I) is a term that specifically identifies a person,
account, address, or personal device, or any other specific
identifier; and
``(II) is used to limit, to the greatest extent reasonably
practicable, the scope of tangible things sought consistent
with the purpose for seeking the tangible things.
``(ii) Limitation.--A specific selection term under clause
(i) does not include an identifier that does not limit, to
the greatest extent reasonably practicable, the scope of
tangible things sought consistent with the purpose for
seeking the tangible things, such as an identifier that--
``(I) identifies an electronic communication service
provider (as that term is defined in section 701) or a
provider of remote computing service (as that term is defined
in section 2711 of title 18, United States Code), when not
used as part of a specific identifier as described in clause
(i), unless the provider is itself a subject of an authorized
investigation for which the specific selection term is used
as the basis for the production; or
``(II) identifies a broad geographic region, including the
United States, a city, a county, a State, a zip code, or an
area code, when not used as part of a specific identifier as
described in clause (i).
``(iii) Rule of construction.--Nothing in this paragraph
shall be construed to preclude the use of multiple terms or
identifiers to meet the requirements of clause (i).
``(B) Call detail record applications.--For purposes of an
application submitted under subsection (b)(2)(C), the term
`specific selection term' means a term that specifically
identifies an individual, account, or personal device.''.
SEC. 109. INSPECTOR GENERAL REPORTS ON BUSINESS RECORDS
ORDERS.
Section 106A of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 120 Stat.
200) is amended--
(1) in subsection (b)--
(A) in paragraph (1), by inserting ``and calendar years
2012 through 2014'' after ``2006'';
(B) by striking paragraphs (2) and (3);
(C) by redesignating paragraphs (4) and (5) as paragraphs
(2) and (3), respectively; and
(D) in paragraph (3) (as so redesignated)--
(i) by striking subparagraph (C) and inserting the
following new subparagraph:
``(C) with respect to calendar years 2012 through 2014, an
examination of the minimization procedures used in relation
to orders under section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) and whether the
minimization procedures adequately protect the constitutional
rights of United States persons;''; and
(ii) in subparagraph (D), by striking ``(as such term is
defined in section 3(4) of the National Security Act of 1947
(50 U.S.C. 401a(4)))'';
(2) in subsection (c), by adding at the end the following
new paragraph:
``(3) Calendar years 2012 through 2014.--Not later than 1
year after the date of enactment of the USA FREEDOM Act of
2015, 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
subsection (a) for calendar years 2012 through 2014.'';
(3) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(4) by inserting after subsection (c) the following new
subsection:
``(d) Intelligence Assessment.--
``(1) In general.--For the period beginning on January 1,
2012, and ending on December 31, 2014, the Inspector General
of the Intelligence Community shall assess--
``(A) the importance of the information acquired under
title V of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1861 et seq.) to the activities of the
intelligence community;
``(B) the manner in which that information was collected,
retained, analyzed, and disseminated by the intelligence
community;
``(C) the minimization procedures used by elements of the
intelligence community under such title and whether the
minimization procedures adequately protect the constitutional
rights of United States persons; and
``(D) any minimization procedures proposed by an element of
the intelligence community under such title that were
modified or denied by the court established under section
103(a) of such Act (50 U.S.C. 1803(a)).
``(2) Submission date for assessment.--Not later than 180
days after the date on which the Inspector General of the
Department of Justice submits the report required under
subsection (c)(3), the Inspector General of the Intelligence
Community 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 assessment for calendar years
2012 through 2014.'';
(5) in subsection (e), as redesignated by paragraph (3)--
(A) in paragraph (1)--
(i) by striking ``a report under subsection (c)(1) or
(c)(2)'' and inserting ``any report under subsection (c) or
(d)''; and
(ii) by striking ``Inspector General of the Department of
Justice'' and inserting ``Inspector General of the Department
of Justice, the Inspector General of the Intelligence
Community, and any Inspector General of an element of the
intelligence community that prepares a report to assist the
Inspector General of the Department of Justice or the
Inspector General of the Intelligence Community in complying
with the requirements of this section''; and
(B) in paragraph (2), by striking ``the reports submitted
under subsections (c)(1) and (c)(2)'' and inserting ``any
report submitted under subsection (c) or (d)'';
(6) in subsection (f), as redesignated by paragraph (3)--
(A) by striking ``The reports submitted under subsections
(c)(1) and (c)(2)'' and inserting ``Each report submitted
under subsection (c)''; and
(B) by striking ``subsection (d)(2)'' and inserting
``subsection (e)(2)''; and
(7) by adding at the end the following new subsection:
``(g) Definitions.--In this section:
``(1) Intelligence community.--The term `intelligence
community' has the meaning given that term in section 3 of
the National Security Act of 1947 (50 U.S.C. 3003).
``(2) United states person.--The term `United States
person' has the meaning given that term in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).''.
SEC. 110. EFFECTIVE DATE.
(a) In General.--The amendments made by sections 101
through 103 shall take effect on the date that is 180 days
after the date of the enactment of this Act.
(b) Review and Certification.--The Director of National
Intelligence shall--
(1) review the implementation of the transition from the
existing procedures for the production of call detail records
under title V of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.), as in effect prior to the
effective date for the amendments made by sections 101
through 103 of this Act, to the new procedures pursuant to
the amendments made by sections 101 through 103 of this Act;
and
(2) not later than 30 days before the effective date
specified in subsection (a), certify to Congress in writing
that--
(A) the implementation of the transition described in
paragraph (1) is operationally effective to allow the timely
retrieval of foreign intelligence information from recipients
of an order issued under section 501(c)(2)(F) of the Foreign
Intelligence Surveillance Act of 1978, as amended by section
101 of this Act; and
(B) the implementation of the amendments made by section
101 through 103 of this Act--
(i) will not harm the national security of the United
States; and
(ii) will ensure the protection of classified information
and classified intelligence sources and methods related to
such production of call detail records.
(c) Rule of Construction.--Nothing in this Act shall be
construed to alter or eliminate the authority of the
Government to obtain an order under title V of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et
seq.) as in effect prior to the effective date described in
subsection (a) during the period ending on such effective
date.
[[Page S3349]]
SEC. 111. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to authorize the
production of the contents (as such term is defined in
section 2510(8) of title 18, United States Code) of any
electronic communication from an electronic communication
service provider (as such term is defined in section
701(b)(4) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881(b)(4))) under title V of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et
seq.).
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
SEC. 201. PROHIBITION ON BULK COLLECTION.
(a) Prohibition.--Section 402(c) (50 U.S.C. 1842(c)) is
amended--
(1) in paragraph (1), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(3) a specific selection term to be used as the basis for
the use of the pen register or trap and trace device.''.
(b) Definition.--Section 401 (50 U.S.C. 1841) is amended by
adding at the end the following new paragraph:
``(4)(A) The term `specific selection term'--
``(i) is a term that specifically identifies a person,
account, address, or personal device, or any other specific
identifier; and
``(ii) is used to limit, to the greatest extent reasonably
practicable, the scope of information sought, consistent with
the purpose for seeking the use of the pen register or trap
and trace device.
``(B) A specific selection term under subparagraph (A) does
not include an identifier that does not limit, to the
greatest extent reasonably practicable, the scope of
information sought, consistent with the purpose for seeking
the use of the pen register or trap and trace device, such as
an identifier that--
``(i) identifies an electronic communication service
provider (as that term is defined in section 701) or a
provider of remote computing service (as that term is defined
in section 2711 of title 18, United States Code), when not
used as part of a specific identifier as described in
subparagraph (A), unless the provider is itself a subject of
an authorized investigation for which the specific selection
term is used as the basis for the use; or
``(ii) identifies a broad geographic region, including the
United States, a city, a county, a State, a zip code, or an
area code, when not used as part of a specific identifier as
described in subparagraph (A).
``(C) For purposes of subparagraph (A), the term `address'
means a physical address or electronic address, such as an
electronic mail address or temporarily assigned network
address (including an Internet protocol address).
``(D) Nothing in this paragraph shall be construed to
preclude the use of multiple terms or identifiers to meet the
requirements of subparagraph (A).''.
SEC. 202. PRIVACY PROCEDURES.
(a) In General.--Section 402 (50 U.S.C. 1842) is amended by
adding at the end the following new subsection:
``(h) Privacy Procedures.--
``(1) In general.--The Attorney General shall ensure that
appropriate policies and procedures are in place to safeguard
nonpublicly available information concerning United States
persons that is collected through the use of a pen register
or trap and trace device installed under this section. Such
policies and procedures shall, to the maximum extent
practicable and consistent with the need to protect national
security, include privacy protections that apply to the
collection, retention, and use of information concerning
United States persons.
``(2) Rule of construction.--Nothing in this subsection
limits the authority of the court established under section
103(a) or of the Attorney General to impose additional
privacy or minimization procedures with regard to the
installation or use of a pen register or trap and trace
device.''.
(b) Emergency Authority.--Section 403 (50 U.S.C. 1843) is
amended by adding at the end the following new subsection:
``(d) Privacy Procedures.--Information collected through
the use of a pen register or trap and trace device installed
under this section shall be subject to the policies and
procedures required under section 402(h).''.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
SEC. 301. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION.
Section 702(i)(3) (50 U.S.C. 1881a(i)(3)) is amended by
adding at the end the following new subparagraph:
``(D) Limitation on use of information.--
``(i) In general.--Except as provided in clause (ii), if
the Court orders a correction of a deficiency in a
certification or procedures under subparagraph (B), no
information obtained or evidence derived pursuant to the part
of the certification or procedures that has been identified
by the Court as deficient concerning any United States person
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
pursuant to such part of such certification or procedures
shall subsequently be used or disclosed in any other manner
by Federal officers or employees without the consent of the
United States person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(ii) Exception.--If the Government corrects any
deficiency identified by the order of the Court under
subparagraph (B), the Court may permit the use or disclosure
of information obtained before the date of the correction
under such minimization procedures as the Court may approve
for purposes of this clause.''.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
SEC. 401. APPOINTMENT OF AMICUS CURIAE.
Section 103 (50 U.S.C. 1803) is amended by adding at the
end the following new subsections:
``(i) Amicus Curiae.--
``(1) Designation.--The presiding judges of the courts
established under subsections (a) and (b) shall, not later
than 180 days after the enactment of this subsection, jointly
designate not fewer than 5 individuals to be eligible to
serve as amicus curiae, who shall serve pursuant to rules the
presiding judges may establish. In designating such
individuals, the presiding judges may consider individuals
recommended by any source, including members of the Privacy
and Civil Liberties Oversight Board, the judges determine
appropriate.
``(2) Authorization.--A court established under subsection
(a) or (b), consistent with the requirement of subsection (c)
and any other statutory requirement that the court act
expeditiously or within a stated time--
``(A) shall appoint an individual who has been designated
under paragraph (1) to serve as amicus curiae to assist such
court in the consideration of any application for an order or
review that, in the opinion of the court, presents a novel or
significant interpretation of the law, unless the court
issues a finding that such appointment is not appropriate;
and
``(B) may appoint an individual or organization to serve as
amicus curiae, including to provide technical expertise, in
any instance as such court deems appropriate or, upon motion,
permit an individual or organization leave to file an amicus
curiae brief.
``(3) Qualifications of amicus curiae.--
``(A) Expertise.--Individuals designated under paragraph
(1) shall be persons who possess expertise in privacy and
civil liberties, intelligence collection, communications
technology, or any other area that may lend legal or
technical expertise to a court established under subsection
(a) or (b).
``(B) Security clearance.--Individuals designated pursuant
to paragraph (1) shall be persons who are determined to be
eligible for access to classified information necessary to
participate in matters before the courts. Amicus curiae
appointed by the court pursuant to paragraph (2) shall be
persons who are determined to be eligible for access to
classified information, if such access is necessary to
participate in the matters in which they may be appointed.
``(4) Duties.--If a court established under subsection (a)
or (b) appoints an amicus curiae under paragraph (2)(A), the
amicus curiae shall provide to the court, as appropriate--
``(A) legal arguments that advance the protection of
individual privacy and civil liberties;
``(B) information related to intelligence collection or
communications technology; or
``(C) legal arguments or information regarding any other
area relevant to the issue presented to the court.
``(5) Assistance.--An amicus curiae appointed under
paragraph (2)(A) may request that the court designate or
appoint additional amici curiae pursuant to paragraph (1) or
paragraph (2), to be available to assist the amicus curiae.
``(6) Access to information.--
``(A) In general.--If a court established under subsection
(a) or (b) appoints an amicus curiae under paragraph (2), the
amicus curiae--
``(i) shall have access to any legal precedent,
application, certification, petition, motion, or such other
materials that the court determines are relevant to the
duties of the amicus curiae; and
``(ii) may, if the court determines that it is relevant to
the duties of the amicus curiae, consult with any other
individuals designated pursuant to paragraph (1) regarding
information relevant to any assigned proceeding.
``(B) Briefings.--The Attorney General may periodically
brief or provide relevant materials to individuals designated
pursuant to paragraph (1) regarding constructions and
interpretations of this Act and legal, technological, and
other issues related to actions authorized by this Act.
``(C) Classified information.--An amicus curiae designated
or appointed by the court may have access to classified
documents, information, and other materials or proceedings
only if that individual is eligible for access to classified
information and to the extent consistent with the national
security of the United States.
``(D) Rule of construction.--Nothing in this section shall
be construed to require the Government to provide information
to an amicus curiae appointed by the court that is privileged
from disclosure.
``(7) Notification.--A presiding judge of a court
established under subsection (a) or (b)
[[Page S3350]]
shall notify the Attorney General of each exercise of the
authority to appoint an individual to serve as amicus curiae
under paragraph (2).
``(8) Assistance.--A court established under subsection (a)
or (b) may request and receive (including on a
nonreimbursable basis) the assistance of the executive branch
in the implementation of this subsection.
``(9) Administration.--A court established under subsection
(a) or (b) may provide for the designation, appointment,
removal, training, or other support for an individual
designated to serve as amicus curiae under paragraph (1) or
appointed to serve as amicus curiae under paragraph (2) in a
manner that is not inconsistent with this subsection.
``(10) Receipt of information.--Nothing in this subsection
shall limit the ability of a court established under
subsection (a) or (b) to request or receive information or
materials from, or otherwise communicate with, the Government
or amicus curiae appointed under paragraph (2) on an ex parte
basis, nor limit any special or heightened obligation in any
ex parte communication or proceeding.
``(j) Review of FISA Court Decisions.--Following issuance
of an order under this Act, a court established under
subsection (a) shall certify for review to the court
established under subsection (b) any question of law that may
affect resolution of the matter in controversy that the court
determines warrants such review because of a need for
uniformity or because consideration by the court established
under subsection (b) would serve the interests of justice.
Upon certification of a question of law under this
subsection, the court established under subsection (b) may
give binding instructions or require the entire record to be
sent up for decision of the entire matter in controversy.
``(k) Review of FISA Court of Review Decisions.--
``(1) Certification.--For purposes of section 1254(2) of
title 28, United States Code, the court of review established
under subsection (b) shall be considered to be a court of
appeals.
``(2) Amicus curiae briefing.--Upon certification of an
application under paragraph (1), the Supreme Court of the
United States may appoint an amicus curiae designated under
subsection (i)(1), or any other person, to provide briefing
or other assistance.''.
SEC. 402. DECLASSIFICATION OF DECISIONS, ORDERS, AND
OPINIONS.
(a) Declassification.--Title VI (50 U.S.C. 1871 et seq.) is
amended--
(1) in the heading, by striking ``REPORTING REQUIREMENT''
and inserting ``OVERSIGHT''; and
(2) by adding at the end the following new section:
``SEC. 602. DECLASSIFICATION OF SIGNIFICANT DECISIONS,
ORDERS, AND OPINIONS.
``(a) Declassification Required.--Subject to subsection
(b), the Director of National Intelligence, in consultation
with the Attorney General, shall conduct a declassification
review of each decision, order, or opinion issued by the
Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review (as defined in
section 601(e)) that includes a significant construction or
interpretation of any provision of law, including any novel
or significant construction or interpretation of the term
`specific selection term', and, consistent with that review,
make publicly available to the greatest extent practicable
each such decision, order, or opinion.
``(b) Redacted Form.--The Director of National
Intelligence, in consultation with the Attorney General, may
satisfy the requirement under subsection (a) to make a
decision, order, or opinion described in such subsection
publicly available to the greatest extent practicable by
making such decision, order, or opinion publicly available in
redacted form.
``(c) National Security Waiver.--The Director of National
Intelligence, in consultation with the Attorney General, may
waive the requirement to declassify and make publicly
available a particular decision, order, or opinion under
subsection (a), if--
``(1) the Director of National Intelligence, in
consultation with the Attorney General, determines that a
waiver of such requirement is necessary to protect the
national security of the United States or properly classified
intelligence sources or methods; and
``(2) the Director of National Intelligence makes publicly
available an unclassified statement prepared by the Attorney
General, in consultation with the Director of National
Intelligence--
``(A) summarizing the significant construction or
interpretation of any provision of law, which shall include,
to the extent consistent with national security, a
description of the context in which the matter arises and any
significant construction or interpretation of any statute,
constitutional provision, or other legal authority relied on
by the decision; and
``(B) that specifies that the statement has been prepared
by the Attorney General and constitutes no part of the
opinion of the Foreign Intelligence Surveillance Court or the
Foreign Intelligence Surveillance Court of Review.''.
(b) Table of Contents Amendments.--The table of contents in
the first section is amended--
(1) by striking the item relating to title VI and inserting
the following new item:
``TITLE VI--OVERSIGHT'';
and
(2) by inserting after the item relating to section 601 the
following new item:
``Sec. 602. Declassification of significant decisions, orders, and
opinions.''.
TITLE V--NATIONAL SECURITY LETTER REFORM
SEC. 501. PROHIBITION ON BULK COLLECTION.
(a) Counterintelligence Access to Telephone Toll and
Transactional Records.--Section 2709(b) of title 18, United
States Code, is amended in the matter preceding paragraph (1)
by striking ``may'' and inserting ``may, using a term that
specifically identifies a person, entity, telephone number,
or account as the basis for a request''.
(b) Access to Financial Records for Certain Intelligence
and Protective Purposes.--Section 1114(a)(2) of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(2)) is
amended by striking the period and inserting ``and a term
that specifically identifies a customer, entity, or account
to be used as the basis for the production and disclosure of
financial records.''.
(c) Disclosures to FBI of Certain Consumer Records for
Counterintelligence Purposes.--Section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u) is amended--
(1) in subsection (a), by striking ``that information,''
and inserting ``that information that includes a term that
specifically identifies a consumer or account to be used as
the basis for the production of that information,'';
(2) in subsection (b), by striking ``written request,'' and
inserting ``written request that includes a term that
specifically identifies a consumer or account to be used as
the basis for the production of that information,''; and
(3) in subsection (c), by inserting ``, which shall include
a term that specifically identifies a consumer or account to
be used as the basis for the production of the information,''
after ``issue an order ex parte''.
(d) Disclosures to Governmental Agencies for
Counterterrorism Purposes of Consumer Reports.--Section
627(a) of the Fair Credit Reporting Act (15 U.S.C. 1681v(a))
is amended by striking ``analysis.'' and inserting ``analysis
and that includes a term that specifically identifies a
consumer or account to be used as the basis for the
production of such information.''.
SEC. 502. LIMITATIONS ON DISCLOSURE OF NATIONAL SECURITY
LETTERS.
(a) Counterintelligence Access to Telephone Toll and
Transactional Records.--Section 2709 of title 18, United
States Code, is amended by striking subsection (c) and
inserting the following new subsection:
``(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 subsection (d) is provided, no wire or electronic
communication service provider that receives a request under
subsection (b), or officer, employee, or agent thereof, shall
disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or
records under this section.
``(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 the absence of a prohibition of
disclosure under this subsection may result in--
``(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 that receives a request under subsection
(b), or officer, employee, or agent thereof, 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) Application.--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 (b) 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 notify the person of the
applicable nondisclosure requirement.
``(D) Identification of disclosure recipients.--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 clause (i) or
(iii) of subparagraph (A) 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.''.
[[Page S3351]]
(b) Access to Financial Records for Certain Intelligence
and Protective Purposes.--Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414) is amended--
(1) in subsection (a)(5), by striking subparagraph (D); and
(2) by inserting after subsection (b) the following new
subsection:
``(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 subsection (d) is provided, no financial institution
that receives a request under subsection (a), or officer,
employee, or agent thereof, shall disclose to any person that
the Federal Bureau of Investigation has sought or obtained
access to information or records under subsection (a).
``(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 the absence of a prohibition of
disclosure under this subsection may result in--
``(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 financial institution that receives a
request under subsection (a), or officer, employee, or agent
thereof, 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) Application.--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.
``(D) Identification of disclosure recipients.--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 clause (i) or
(iii) of subparagraph (A) 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.''.
(c) Identity of Financial Institutions and Credit
Reports.--Section 626 of the Fair Credit Reporting Act (15
U.S.C. 1681u) is amended by striking subsection (d) and
inserting the following new subsection:
``(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 subsection (e) is provided, no consumer reporting
agency that receives a request under subsection (a) or (b) or
an order under subsection (c), or officer, employee, or agent
thereof, 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 the absence of a prohibition of
disclosure under this subsection may result in--
``(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 that
receives a request under subsection (a) or (b) or an order
under subsection (c), or officer, employee, or agent thereof,
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) Application.--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 under
subsection (a) or (b) or an order under subsection (c) is
issued 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.
``(D) Identification of disclosure recipients.--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 clause (i) or
(iii) of subparagraph (A) 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.''.
(d) Consumer Reports.--Section 627 of the Fair Credit
Reporting Act (15 U.S.C. 1681v) is amended by striking
subsection (c) and inserting the following new subsection:
``(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 subsection (d) is provided, no consumer reporting
agency that receives a request under subsection (a), or
officer, employee, or agent thereof, shall disclose or
specify in any consumer report, that a government agency
described in subsection (a) has sought or obtained access to
information or records under subsection (a).
``(B) Certification.--The requirements of subparagraph (A)
shall apply if the head of the government agency described in
subsection (a), or a designee, certifies that the absence of
a prohibition of disclosure under this subsection may result
in--
``(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 that
receives a request under subsection (a), or officer,
employee, or agent thereof, 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 described in subsection (a) or a designee.
``(B) Application.--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 under
subsection (a) is issued 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.
``(D) Identification of disclosure recipients.--At the
request of the head of the government agency described in
subsection (a) or a designee, any person making or intending
to make a disclosure under clause (i) or (iii) of
subparagraph (A) shall identify to the head or such designee
the person to whom such disclosure will be made or to whom
such disclosure was made prior to the request.''.
(e) Investigations of Persons With Access to Classified
Information.--Section 802 of the National Security Act of
1947 (50 U.S.C. 3162) is amended by striking subsection (b)
and inserting the following new subsection:
``(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 subsection (c) is provided, no governmental or private
entity that receives a request under subsection (a), or
officer, employee, or agent thereof, shall disclose to any
person that an authorized investigative agency described in
subsection (a) has sought or obtained access to information
under subsection (a).
``(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
the absence of a prohibition of disclosure under this
subsection may result in--
``(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 that
receives a request under subsection (a), or officer,
employee, or agent thereof, may disclose information
otherwise subject to any applicable nondisclosure requirement
to--
[[Page S3352]]
``(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)
or a designee.
``(B) Application.--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.
``(D) Identification of disclosure recipients.--At the
request of the head of an authorized investigative agency
described in subsection (a), or a designee, any person making
or intending to make a disclosure under clause (i) or (iii)
of subparagraph (A) shall identify to the head of the
authorized investigative agency or such designee the person
to whom such disclosure will be made or to whom such
disclosure was made prior to the request.''.
(f) Termination Procedures.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Attorney General shall adopt
procedures with respect to nondisclosure requirements issued
pursuant to section 2709 of title 18, United States Code,
section 626 or 627 of the Fair Credit Reporting Act (15
U.S.C. 1681u and 1681v), section 1114 of the Right to
Financial Privacy Act (12 U.S.C. 3414), or section 802 of the
National Security Act of 1947 (50 U.S.C. 3162), as amended by
this Act, to require--
(A) the review at appropriate intervals of such a
nondisclosure requirement to assess whether the facts
supporting nondisclosure continue to exist;
(B) the termination of such a nondisclosure requirement if
the facts no longer support nondisclosure; and
(C) appropriate notice to the recipient of the national
security letter, or officer, employee, or agent thereof,
subject to the nondisclosure requirement, and the applicable
court as appropriate, that the nondisclosure requirement has
been terminated.
(2) Reporting.--Upon adopting the procedures required under
paragraph (1), the Attorney General shall submit the
procedures to the Committee on the Judiciary of the Senate
and the Committee on the Judiciary of the House of
Representatives.
(g) Judicial Review.--Section 3511 of title 18, United
States Code, is amended by striking subsection (b) and
inserting the following new subsection:
``(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. 3162),
wishes to have a court review a nondisclosure requirement
imposed in connection with the request or order, the
recipient may notify the Government or file a petition for
judicial review in any court described in subsection (a).
``(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 the
judicial district in which the recipient of the order is
doing business or in the district court of the United States
for any judicial district within which the authorized
investigation that is the basis for the request 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 a petition under subparagraph (A) or 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 or a response to a
petition filed under paragraph (1) 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 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, 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 facts
indicating that the absence of a prohibition of disclosure
under this subsection may 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.
``(3) Standard.--A district court of the United States
shall issue a nondisclosure order or extension thereof under
this subsection if the court determines that there is reason
to believe that disclosure of the information subject to the
nondisclosure requirement during the applicable time period
may 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.''.
SEC. 503. JUDICIAL REVIEW.
(a) Counterintelligence Access to Telephone Toll and
Transactional Records.--Section 2709 of title 18, United
States Code, is amended--
(1) by redesignating subsections (d), (e), and (f) as
subsections (e), (f), and (g), respectively; and
(2) by inserting after subsection (c) the following new
subsection:
``(d) Judicial Review.--
``(1) In general.--A request under subsection (b) or a
nondisclosure requirement imposed in connection with such
request under subsection (c) shall be subject to judicial
review under section 3511.
``(2) Notice.--A request under subsection (b) shall include
notice of the availability of judicial review described in
paragraph (1).''.
(b) Access to Financial Records for Certain Intelligence
and Protective Purposes.--Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414) is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following new
subsection:
``(d) Judicial Review.--
``(1) In general.--A request under subsection (a) or a
nondisclosure requirement imposed in connection with such
request under subsection (c) shall be subject to judicial
review under section 3511 of title 18, United States Code.
``(2) Notice.--A request under subsection (a) shall include
notice of the availability of judicial review described in
paragraph (1).''.
(c) Identity of Financial Institutions and Credit
Reports.--Section 626 of the Fair Credit Reporting Act (15
U.S.C. 1681u) is amended--
(1) by redesignating subsections (e) through (m) as
subsections (f) through (n), respectively; and
(2) by inserting after subsection (d) the following new
subsection:
``(e) Judicial Review.--
``(1) In general.--A request under subsection (a) or (b) or
an order under subsection (c) or a non-disclosure requirement
imposed in connection with such request under subsection (d)
shall be subject to judicial review under section 3511 of
title 18, United States Code.
``(2) Notice.--A request under subsection (a) or (b) or an
order under subsection (c) shall include notice of the
availability of judicial review described in paragraph
(1).''.
(d) Identity of Financial Institutions and Credit
Reports.--Section 627 of the Fair Credit Reporting Act (15
U.S.C. 1681v) is amended--
(1) by redesignating subsections (d), (e), and (f) as
subsections (e), (f), and (g), respectively; and
(2) by inserting after subsection (c) the following new
subsection:
``(d) Judicial Review.--
``(1) In general.--A request under subsection (a) or a non-
disclosure requirement imposed in connection with such
request under subsection (c) shall be subject to judicial
review under section 3511 of title 18, United States Code.
``(2) Notice.--A request under subsection (a) shall include
notice of the availability of judicial review described in
paragraph (1).''.
(e) Investigations of Persons With Access to Classified
Information.--Section 802 of the National Security Act of
1947 (50 U.S.C. 3162) is amended--
(1) by redesignating subsections (c) through (f) as
subsections (d) through (g), respectively; and
(2) by inserting after subsection (b) the following new
subsection:
``(c) Judicial Review.--
``(1) In general.--A request under subsection (a) or a
nondisclosure requirement imposed in connection with such
request under subsection (b) shall be subject to judicial
review under section 3511 of title 18, United States Code.
``(2) Notice.--A request under subsection (a) shall include
notice of the availability of judicial review described in
paragraph (1).''.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
SEC. 601. ADDITIONAL REPORTING ON ORDERS REQUIRING PRODUCTION
OF BUSINESS RECORDS; BUSINESS RECORDS
COMPLIANCE REPORTS TO CONGRESS.
(a) Reports Submitted to Committees.--Section 502(b) (50
U.S.C. 1862(b)) is amended--
(1) by redesignating paragraphs (1), (2), and (3) as
paragraphs (6), (7), and (8), respectively; and
[[Page S3353]]
(2) by inserting before paragraph (6) (as so redesignated)
the following new paragraphs:
``(1) a summary of all compliance reviews conducted by the
Government for the production of tangible things under
section 501;
``(2) the total number of applications described in section
501(b)(2)(B) made for orders approving requests for the
production of tangible things;
``(3) the total number of such orders either granted,
modified, or denied;
``(4) the total number of applications described in section
501(b)(2)(C) made for orders approving requests for the
production of call detail records;
``(5) the total number of such orders either granted,
modified, or denied;''.
(b) Reporting on Certain Types of Production.--Section
502(c)(1) (50 U.S.C. 1862(c)(1)) is amended--
(1) in subparagraph (A), by striking ``and'';
(2) in subparagraph (B), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following new subparagraphs:
``(C) the total number of applications made for orders
approving requests for the production of tangible things
under section 501 in which the specific selection term does
not specifically identify an individual, account, or personal
device;
``(D) the total number of orders described in subparagraph
(C) either granted, modified, or denied; and
``(E) with respect to orders described in subparagraph (D)
that have been granted or modified, whether the court
established under section 103 has directed additional,
particularized minimization procedures beyond those adopted
pursuant to section 501(g).''.
SEC. 602. ANNUAL REPORTS BY THE GOVERNMENT.
(a) In General.--Title VI (50 U.S.C. 1871 et seq.), as
amended by section 402 of this Act, is further amended by
adding at the end the following new section:
``SEC. 603. ANNUAL REPORTS.
``(a) Report by Director of the Administrative Office of
the United States Courts.--
``(1) Report required.--The Director of the Administrative
Office of the United States Courts shall annually submit to
the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives
and the Select Committee on Intelligence and the Committee on
the Judiciary of the Senate, subject to a declassification
review by the Attorney General and the Director of National
Intelligence, a report that includes--
``(A) the number of applications or certifications for
orders submitted under each of sections 105, 304, 402, 501,
702, 703, and 704;
``(B) the number of such orders granted under each of those
sections;
``(C) the number of orders modified under each of those
sections;
``(D) the number of applications or certifications denied
under each of those sections;
``(E) the number of appointments of an individual to serve
as amicus curiae under section 103, including the name of
each individual appointed to serve as amicus curiae; and
``(F) the number of findings issued under section 103(i)
that such appointment is not appropriate and the text of any
such findings.
``(2) Publication.--The Director shall make the report
required under paragraph (1) publicly available on an
Internet Web site, except that the Director shall not make
publicly available on an Internet Web site the findings
described in subparagraph (F) of paragraph (1).
``(b) Mandatory Reporting by Director of National
Intelligence.--Except as provided in subsection (d), the
Director of National Intelligence shall annually make
publicly available on an Internet Web site a report that
identifies, for the preceding 12-month period--
``(1) the total number of orders issued pursuant to titles
I and III and sections 703 and 704 and a good faith estimate
of the number of targets of such orders;
``(2) the total number of orders issued pursuant to section
702 and a good faith estimate of--
``(A) the number of search terms concerning a known United
States person used to retrieve the unminimized contents of
electronic communications or wire communications obtained
through acquisitions authorized under such section, excluding
the number of search terms used to prevent the return of
information concerning a United States person; and
``(B) the number of queries concerning a known United
States person of unminimized noncontents information relating
to electronic communications or wire communications obtained
through acquisitions authorized under such section, excluding
the number of queries containing information used to prevent
the return of information concerning a United States person;
``(3) the total number of orders issued pursuant to title
IV and a good faith estimate of--
``(A) the number of targets of such orders; and
``(B) the number of unique identifiers used to communicate
information collected pursuant to such orders;
``(4) the total number of orders issued pursuant to
applications made under section 501(b)(2)(B) and a good faith
estimate of--
``(A) the number of targets of such orders; and
``(B) the number of unique identifiers used to communicate
information collected pursuant to such orders;
``(5) the total number of orders issued pursuant to
applications made under section 501(b)(2)(C) and a good faith
estimate of--
``(A) the number of targets of such orders;
``(B) the number of unique identifiers used to communicate
information collected pursuant to such orders; and
``(C) the number of search terms that included information
concerning a United States person that were used to query any
database of call detail records obtained through the use of
such orders; and
``(6) the total number of national security letters issued
and the number of requests for information contained within
such national security letters.
``(c) Timing.--The annual reports required by subsections
(a) and (b) shall be made publicly available during April of
each year and include information relating to the previous
calendar year.
``(d) Exceptions.--
``(1) Statement of numerical range.--If a good faith
estimate required to be reported under subparagraph (B) of
any of paragraphs (3), (4), or (5) of subsection (b) is fewer
than 500, it shall be expressed as a numerical range of
`fewer than 500' and shall not be expressed as an individual
number.
``(2) Nonapplicability to certain information.--
``(A) Federal bureau of investigation.--Paragraphs (2)(A),
(2)(B), and (5)(C) of subsection (b) shall not apply to
information or records held by, or queries conducted by, the
Federal Bureau of Investigation.
``(B) Electronic mail address and telephone numbers.--
Paragraph (3)(B) of subsection (b) shall not apply to orders
resulting in the acquisition of information by the Federal
Bureau of Investigation that does not include electronic mail
addresses or telephone numbers.
``(3) Certification.--
``(A) In general.--If the Director of National Intelligence
concludes that a good faith estimate required to be reported
under subsection (b)(2)(B) cannot be determined accurately
because some but not all of the relevant elements of the
intelligence community are able to provide such good faith
estimate, the Director shall--
``(i) certify that conclusion in writing to the Select
Committee on Intelligence and the Committee on the Judiciary
of the Senate and the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives;
``(ii) report the good faith estimate for those relevant
elements able to provide such good faith estimate;
``(iii) explain when it is reasonably anticipated that such
an estimate will be able to be determined fully and
accurately; and
``(iv) make such certification publicly available on an
Internet Web site.
``(B) Form.--A certification described in subparagraph (A)
shall be prepared in unclassified form, but may contain a
classified annex.
``(C) Timing.--If the Director of National Intelligence
continues to conclude that the good faith estimates described
in this paragraph cannot be determined accurately, the
Director shall annually submit a certification in accordance
with this paragraph.
``(e) Definitions.--In this section:
``(1) Contents.--The term `contents' has the meaning given
that term under section 2510 of title 18, United States Code.
``(2) Electronic communication.--The term `electronic
communication' has the meaning given that term under section
2510 of title 18, United States Code.
``(3) National security letter.--The term `national
security letter' means a request for a report, records, or
other information under--
``(A) section 2709 of title 18, United States Code;
``(B) section 1114(a)(5)(A) of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A));
``(C) subsection (a) or (b) of section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u(a), 1681u(b)); or
``(D) section 627(a) of the Fair Credit Reporting Act (15
U.S.C. 1681v(a)).
``(4) United states person.--The term `United States
person' means a citizen of the United States or an alien
lawfully admitted for permanent residence (as defined in
section 101(a) of the Immigration and Nationality Act (8
U.S.C. 1101(a))).
``(5) Wire communication.--The term `wire communication'
has the meaning given that term under section 2510 of title
18, United States Code.''.
(b) Table of Contents Amendment.--The table of contents, as
amended by section 402 of this Act, is further amended by
inserting after the item relating to section 602, as added by
section 402 of this Act, the following new item:
``Sec. 603. Annual reports.''.
(c) Public Reporting on National Security Letters.--Section
118(c) of the USA PATRIOT Improvement and Reauthorization Act
of 2005 (18 U.S.C. 3511 note) is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by striking
``United States''; and
(B) in subparagraph (A), by striking ``, excluding the
number of requests for subscriber information'';
(2) by redesignating paragraph (2) as paragraph (3); and
[[Page S3354]]
(3) by inserting after paragraph (1) the following:
``(2) Content.--
``(A) In general.--Except as provided in subparagraph (B),
each report required under this subsection shall include a
good faith estimate of the total number of requests described
in paragraph (1) requiring disclosure of information
concerning--
``(i) United States persons; and
``(ii) persons who are not United States persons.
``(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 separate the number of requests into each of the
categories described in subparagraph (A).''.
(d) Stored Communications.--Section 2702(d) of title 18,
United States Code, is amended--
(1) in paragraph (1), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (2)(B), by striking the period and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(3) the number of accounts from which the Department of
Justice has received voluntary disclosures under subsection
(c)(4).''.
SEC. 603. PUBLIC REPORTING BY PERSONS SUBJECT TO FISA ORDERS.
(a) In General.--Title VI (50 U.S.C. 1871 et seq.), as
amended by sections 402 and 602 of this Act, is further
amended by adding at the end the following new section:
``SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO ORDERS.
``(a) Reporting.--A person subject to a nondisclosure
requirement accompanying an order or directive under this Act
or a national security letter may, with respect to such
order, directive, or national security letter, publicly
report the following information using one of the following
structures:
``(1) A semiannual report that aggregates the number of
orders, directives, or national security letters with which
the person was required to comply into separate categories
of--
``(A) the number of national security letters received,
reported in bands of 1000 starting with 0-999;
``(B) the number of customer selectors targeted by national
security letters, reported in bands of 1000 starting with 0-
999;
``(C) the number of orders or directives received,
combined, under this Act for contents, reported in bands of
1000 starting with 0-999;
``(D) the number of customer selectors targeted under
orders or directives received, combined, under this Act for
contents reported in bands of 1000 starting with 0-999;
``(E) the number of orders received under this Act for
noncontents, reported in bands of 1000 starting with 0-999;
and
``(F) the number of customer selectors targeted under
orders under this Act for noncontents, reported in bands of
1000 starting with 0-999, pursuant to--
``(i) title IV;
``(ii) title V with respect to applications described in
section 501(b)(2)(B); and
``(iii) title V with respect to applications described in
section 501(b)(2)(C).
``(2) A semiannual report that aggregates the number of
orders, directives, or national security letters with which
the person was required to comply into separate categories
of--
``(A) the number of national security letters received,
reported in bands of 500 starting with 0-499;
``(B) the number of customer selectors targeted by national
security letters, reported in bands of 500 starting with 0-
499;
``(C) the number of orders or directives received,
combined, under this Act for contents, reported in bands of
500 starting with 0-499;
``(D) the number of customer selectors targeted under
orders or directives received, combined, under this Act for
contents, reported in bands of 500 starting with 0-499;
``(E) the number of orders received under this Act for
noncontents, reported in bands of 500 starting with 0-499;
and
``(F) the number of customer selectors targeted under
orders received under this Act for noncontents, reported in
bands of 500 starting with 0-499.
``(3) A semiannual report that aggregates the number of
orders, directives, or national security letters with which
the person was required to comply in the into separate
categories of--
``(A) the total number of all national security process
received, including all national security letters, and orders
or directives under this Act, combined, reported in bands of
250 starting with 0-249; and
``(B) the total number of customer selectors targeted under
all national security process received, including all
national security letters, and orders or directives under
this Act, combined, reported in bands of 250 starting with 0-
249.
``(4) An annual report that aggregates the number of
orders, directives, and national security letters the person
was required to comply with into separate categories of--
``(A) the total number of all national security process
received, including all national security letters, and orders
or directives under this Act, combined, reported in bands of
100 starting with 0-99; and
``(B) the total number of customer selectors targeted under
all national security process received, including all
national security letters, and orders or directives under
this Act, combined, reported in bands of 100 starting with 0-
99.
``(b) Period of Time Covered by Reports.--
``(1) A report described in paragraph (1) or (2) of
subsection (a) shall include only information--
``(A) relating to national security letters for the
previous 180 days; and
``(B) relating to authorities under this Act for the 180-
day period of time ending on the date that is not less than
180 days prior to the date of the publication of such report,
except that with respect to a platform, product, or service
for which a person did not previously receive an order or
directive (not including an enhancement to or iteration of an
existing publicly available platform, product, or service)
such report shall not include any information relating to
such new order or directive until 540 days after the date on
which such new order or directive is received.
``(2) A report described in paragraph (3) of subsection (a)
shall include only information relating to the previous 180
days.
``(3) A report described in paragraph (4) of subsection (a)
shall include only information for the 1-year period of time
ending on the date that is not less than 1 year prior to the
date of the publication of such report.
``(c) Other Forms of Agreed to Publication.--Nothing in
this section prohibits the Government and any person from
jointly agreeing to the publication of information referred
to in this subsection in a time, form, or manner other than
as described in this section.
``(d) Definitions.--In this section:
``(1) Contents.--The term `contents' has the meaning given
that term under section 2510 of title 18, United States Code.
``(2) National security letter.--The term `national
security letter' has the meaning given that term under
section 603.''.
(b) Table of Contents Amendment.--The table of contents, as
amended by sections 402 and 602 of this Act, is further
amended by inserting after the item relating to section 603,
as added by section 602 of this Act, the following new item:
``Sec. 604. Public reporting by persons subject to orders.''.
SEC. 604. REPORTING REQUIREMENTS FOR DECISIONS, ORDERS, AND
OPINIONS OF THE FOREIGN INTELLIGENCE
SURVEILLANCE COURT AND THE FOREIGN INTELLIGENCE
SURVEILLANCE COURT OF REVIEW.
Section 601(c)(1) (50 U.S.C. 1871(c)(1)) is amended to read
as follows:
``(1) not later than 45 days after the date on which the
Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review issues a decision,
order, or opinion, including any denial or modification of an
application under this Act, that includes significant
construction or interpretation of any provision of law or
results in a change of application of any provision of this
Act or a novel application of any provision of this Act, a
copy of such decision, order, or opinion and any pleadings,
applications, or memoranda of law associated with such
decision, order, or opinion; and''.
SEC. 605. SUBMISSION OF REPORTS UNDER FISA.
(a) Electronic Surveillance.--Section 108(a)(1) (50 U.S.C.
1808(a)(1)) is amended by striking ``the House Permanent
Select Committee on Intelligence and the Senate Select
Committee on Intelligence, and the Committee on the Judiciary
of the Senate,'' and inserting ``the Permanent Select
Committee on Intelligence and the Committee on the Judiciary
of the House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the
Senate''.
(b) Physical Searches.--The matter preceding paragraph (1)
of section 306 (50 U.S.C. 1826) is amended--
(1) in the first sentence, by striking ``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 Senate,'' and inserting
``Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives
and the Select Committee on Intelligence and the Committee on
the Judiciary of the Senate''; and
(2) in the second sentence, by striking ``and the Committee
on the Judiciary of the House of Representatives''.
(c) Pen Registers and Trap and Trace Devices.--Section
406(b) (50 U.S.C. 1846(b)) is amended--
(1) in paragraph (2), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (3), by striking the period and inserting
a semicolon; and
(3) by adding at the end the following new paragraphs:
``(4) each department or agency on behalf of which the
Attorney General or a designated attorney for the Government
has made an application for an order authorizing or approving
the installation and use of a pen register or trap and trace
device under this title; and
``(5) for each department or agency described in paragraph
(4), each number described in paragraphs (1), (2), and
(3).''.
(d) Access to Certain Business Records and Other Tangible
Things.--Section 502(a) (50 U.S.C. 1862(a)) is amended by
striking ``Permanent Select Committee on Intelligence of the
House of Representatives and
[[Page S3355]]
the Select Committee on Intelligence and the Committee on the
Judiciary of the Senate'' and inserting ``Permanent Select
Committee on Intelligence and the Committee on the Judiciary
of the House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the
Senate''.
TITLE VII--ENHANCED NATIONAL SECURITY PROVISIONS
SEC. 701. EMERGENCIES INVOLVING NON-UNITED STATES PERSONS.
(a) In General.--Section 105 (50 U.S.C. 1805) is amended--
(1) by redesignating subsections (f), (g), (h), and (i) as
subsections (g), (h), (i), and (j), respectively; and
(2) by inserting after subsection (e) the following:
``(f)(1) Notwithstanding any other provision of this Act,
the lawfully authorized targeting of a non-United States
person previously believed to be located outside the United
States for the acquisition of foreign intelligence
information may continue for a period not to exceed 72 hours
from the time that the non-United States person is reasonably
believed to be located inside the United States and the
acquisition is subject to this title or to title III of this
Act, provided that the head of an element of the intelligence
community--
``(A) reasonably determines that a lapse in the targeting
of such non-United States person poses a threat of death or
serious bodily harm to any person;
``(B) promptly notifies the Attorney General of a
determination under subparagraph (A); and
``(C) requests, as soon as practicable, the employment of
emergency electronic surveillance under subsection (e) or the
employment of an emergency physical search pursuant to
section 304(e), as warranted.
``(2) The authority under this subsection to continue the
acquisition of foreign intelligence information is limited to
a period not to exceed 72 hours and shall cease upon the
earlier of the following:
``(A) The employment of emergency electronic surveillance
under subsection (e) or the employment of an emergency
physical search pursuant to section 304(e).
``(B) An issuance of a court order under this title or
title III of this Act.
``(C) The Attorney General provides direction that the
acquisition be terminated.
``(D) The head of the element of the intelligence community
conducting the acquisition determines that a request under
paragraph (1)(C) is not warranted.
``(E) When the threat of death or serious bodily harm to
any person is no longer reasonably believed to exist.
``(3) Nonpublicly available information concerning
unconsenting United States persons acquired under this
subsection shall not be disseminated during the 72 hour time
period under paragraph (1) unless necessary to investigate,
reduce, or eliminate the threat of death or serious bodily
harm to any person.
``(4) If the Attorney General declines to authorize the
employment of emergency electronic surveillance under
subsection (e) or the employment of an emergency physical
search pursuant to section 304(e), or a court order is not
obtained under this title or title III of this Act,
information obtained during the 72 hour acquisition time
period under paragraph (1) shall not be retained, except with
the approval of the Attorney General if the information
indicates a threat of death or serious bodily harm to any
person.
``(5) Paragraphs (5) and (6) of subsection (e) shall apply
to this subsection.''.
(b) Notification of Emergency Employment of Electronic
Surveillance.--Section 106(j) (50 U.S.C. 1806(j)) is amended
by striking ``section 105(e)'' and inserting ``subsection (e)
or (f) of section 105''.
(c) Report to Congress.--Section 108(a)(2) (50 U.S.C.
1808(a)(2)) is amended--
(1) in subparagraph (B), by striking ``and'' at the end;
(2) in subparagraph (C), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(D) the total number of authorizations under section
105(f) and the total number of subsequent emergency
employments of electronic surveillance under section 105(e)
or emergency physical searches pursuant to section 301(e).''.
SEC. 702. PRESERVATION OF TREATMENT OF NON-UNITED STATES
PERSONS TRAVELING OUTSIDE THE UNITED STATES AS
AGENTS OF FOREIGN POWERS.
Section 101(b)(1) is amended--
(1) in subparagraph (A), by inserting before the semicolon
at the end the following: ``, irrespective of whether the
person is inside the United States''; and
(2) in subparagraph (B)--
(A) by striking ``of such person's presence in the United
States''; and
(B) by striking ``such activities in the United States''
and inserting ``such activities''.
SEC. 703. IMPROVEMENT TO INVESTIGATIONS OF INTERNATIONAL
PROLIFERATION OF WEAPONS OF MASS DESTRUCTION.
Section 101(b)(1) is further amended by striking
subparagraph (E) and inserting the following new subparagraph
(E):
``(E) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor,
for or on behalf of a foreign power, or knowingly aids or
abets any person in the conduct of such proliferation or
activities in preparation therefor, or knowingly conspires
with any person to engage in such proliferation or activities
in preparation therefor; or''.
SEC. 704. INCREASE IN PENALTIES FOR MATERIAL SUPPORT OF
FOREIGN TERRORIST ORGANIZATIONS.
Section 2339B(a)(1) of title 18, United States Code, is
amended by striking ``15 years'' and inserting ``20 years''.
SEC. 705. SUNSETS.
(a) USA PATRIOT Improvement and Reauthorization Act of
2005.--Section 102(b)(1) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (50 U.S.C. 1805 note) is amended
by striking ``June 1, 2015'' and inserting ``December 15,
2019''.
(b) Intelligence Reform and Terrorism Prevention Act of
2004.--Section 6001(b)(1) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 1801 note) is
amended by striking ``June 1, 2015'' and inserting ``December
15, 2019''.
(c) Conforming Amendment.--Section 102(b)(1) of the USA
PATRIOT Improvement and Reauthorization Act of 2005 (50
U.S.C. 1805 note), as amended by subsection (a), is further
amended by striking ``sections 501, 502, and'' and inserting
``title V and section''.
TITLE VIII--SAFETY OF MARITIME NAVIGATION AND NUCLEAR TERRORISM
CONVENTIONS IMPLEMENTATION
Subtitle A--Safety of Maritime Navigation
SEC. 801. AMENDMENT TO SECTION 2280 OF TITLE 18, UNITED
STATES CODE.
Section 2280 of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1)(A)(i), by striking ``a ship flying the
flag of the United States'' and inserting ``a vessel of the
United States or a vessel subject to the jurisdiction of the
United States (as defined in section 70502 of title 46)'';
(B) in paragraph (1)(A)(ii), by inserting ``, including the
territorial seas'' after ``in the United States''; and
(C) in paragraph (1)(A)(iii), by inserting ``, by a United
States corporation or legal entity,'' after ``by a national
of the United States'';
(2) in subsection (c), by striking ``section 2(c)'' and
inserting ``section 13(c)'';
(3) by striking subsection (d);
(4) by striking subsection (e) and inserting after
subsection (c) the following:
``(d) Definitions.--As used in this section, section 2280a,
section 2281, and section 2281a, the term--
``(1) `applicable treaty' means--
``(A) the Convention for the Suppression of Unlawful
Seizure of Aircraft, done at The Hague on 16 December 1970;
``(B) the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, done at Montreal on 23
September 1971;
``(C) the Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including
Diplomatic Agents, adopted by the General Assembly of the
United Nations on 14 December 1973;
``(D) International Convention against the Taking of
Hostages, adopted by the General Assembly of the United
Nations on 17 December 1979;
``(E) the Convention on the Physical Protection of Nuclear
Material, done at Vienna on 26 October 1979;
``(F) the Protocol for the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation,
supplementary to the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, done at
Montreal on 24 February 1988;
``(G) the Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms Located on the
Continental Shelf, done at Rome on 10 March 1988;
``(H) International Convention for the Suppression of
Terrorist Bombings, adopted by the General Assembly of the
United Nations on 15 December 1997; and
``(I) International Convention for the Suppression of the
Financing of Terrorism, adopted by the General Assembly of
the United Nations on 9 December 1999;
``(2) `armed conflict' does not include internal
disturbances and tensions, such as riots, isolated and
sporadic acts of violence, and other acts of a similar
nature;
``(3) `biological weapon' means--
``(A) microbial or other biological agents, or toxins
whatever their origin or method of production, of types and
in quantities that have no justification for prophylactic,
protective, or other peaceful purposes; or
``(B) weapons, equipment, or means of delivery designed to
use such agents or toxins for hostile purposes or in armed
conflict;
``(4) `chemical weapon' means, together or separately--
``(A) toxic chemicals and their precursors, except where
intended for--
``(i) industrial, agricultural, research, medical,
pharmaceutical, or other peaceful purposes;
``(ii) protective purposes, namely those purposes directly
related to protection against toxic chemicals and to
protection against chemical weapons;
``(iii) military purposes not connected with the use of
chemical weapons and not dependent on the use of the toxic
properties of chemicals as a method of warfare; or
``(iv) law enforcement including domestic riot control
purposes,
as long as the types and quantities are consistent with such
purposes;
``(B) munitions and devices, specifically designed to cause
death or other harm through
[[Page S3356]]
the toxic properties of those toxic chemicals specified in
subparagraph (A), which would be released as a result of the
employment of such munitions and devices; and
``(C) any equipment specifically designed for use directly
in connection with the employment of munitions and devices
specified in subparagraph (B);
``(5) `covered ship' means a ship that is navigating or is
scheduled to navigate into, through or from waters beyond the
outer limit of the territorial sea of a single country or a
lateral limit of that country's territorial sea with an
adjacent country;
``(6) `explosive material' has the meaning given the term
in section 841(c) and includes explosive as defined in
section 844(j) of this title;
``(7) `infrastructure facility' has the meaning given the
term in section 2332f(e)(5) of this title;
``(8) `international organization' has the meaning given
the term in section 831(f)(3) of this title;
``(9) `military forces of a state' means the armed forces
of a state which are organized, trained, and equipped under
its internal law for the primary purpose of national defense
or security, and persons acting in support of those armed
forces who are under their formal command, control, and
responsibility;
``(10) `national of the United States' has the meaning
stated in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22));
``(11) `Non-Proliferation Treaty' means the Treaty on the
Non-Proliferation of Nuclear Weapons, done at Washington,
London, and Moscow on 1 July 1968;
``(12) `Non-Proliferation Treaty State Party' means any
State Party to the Non-Proliferation Treaty, to include
Taiwan, which shall be considered to have the obligations
under the Non-Proliferation Treaty of a party to that treaty
other than a Nuclear Weapon State Party to the Non-
Proliferation Treaty;
``(13) `Nuclear Weapon State Party to the Non-Proliferation
Treaty' means a State Party to the Non-Proliferation Treaty
that is a nuclear-weapon State, as that term is defined in
Article IX(3) of the Non-Proliferation Treaty;
``(14) `place of public use' has the meaning given the term
in section 2332f(e)(6) of this title;
``(15) `precursor' has the meaning given the term in
section 229F(6)(A) of this title;
``(16) `public transport system' has the meaning given the
term in section 2332f(e)(7) of this title;
``(17) `serious injury or damage' means--
``(A) serious bodily injury,
``(B) extensive destruction of a place of public use, State
or government facility, infrastructure facility, or public
transportation system, resulting in major economic loss, or
``(C) substantial damage to the environment, including air,
soil, water, fauna, or flora;
``(18) `ship' means a vessel of any type whatsoever not
permanently attached to the sea-bed, including dynamically
supported craft, submersibles, or any other floating craft,
but does not include a warship, a ship owned or operated by a
government when being used as a naval auxiliary or for
customs or police purposes, or a ship which has been
withdrawn from navigation or laid up;
``(19) `source material' has the meaning given that term in
the International Atomic Energy Agency Statute, done at New
York on 26 October 1956;
``(20) `special fissionable material' has the meaning given
that term in the International Atomic Energy Agency Statute,
done at New York on 26 October 1956;
``(21) `territorial sea of the United States' means all
waters extending seaward to 12 nautical miles from the
baselines of the United States determined in accordance with
international law;
``(22) `toxic chemical' has the meaning given the term in
section 229F(8)(A) of this title;
``(23) `transport' means to initiate, arrange or exercise
effective control, including decisionmaking authority, over
the movement of a person or item; and
``(24) `United States', when used in a geographical sense,
includes the Commonwealth of Puerto Rico, the Commonwealth of
the Northern Mariana Islands, and all territories and
possessions of the United States.''; and
(5) by inserting after subsection (d) (as added by
paragraph (4) of this section) the following:
``(e) Exceptions.--This section shall not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.
``(f) Delivery of Suspected Offender.--The master of a
covered ship flying the flag of the United States who has
reasonable grounds to believe that there is on board that
ship any person who has committed an offense under section
2280 or section 2280a may deliver such person to the
authorities of a country that is a party to the Convention
for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation. Before delivering such person to the
authorities of another country, the master shall notify in an
appropriate manner the Attorney General of the United States
of the alleged offense and await instructions from the
Attorney General as to what action to take. When delivering
the person to a country which is a state party to the
Convention, the master shall, whenever practicable, and if
possible before entering the territorial sea of such country,
notify the authorities of such country of the master's
intention to deliver such person and the reasons therefor. If
the master delivers such person, the master shall furnish to
the authorities of such country the evidence in the master's
possession that pertains to the alleged offense.
``(g)(1) Civil Forfeiture.--Any real or personal property
used or intended to be used to commit or to facilitate the
commission of a violation of this section, the gross proceeds
of such violation, and any real or personal property
traceable to such property or proceeds, shall be subject to
forfeiture.
``(2) Applicable Procedures.--Seizures and forfeitures
under this section shall be governed by the provisions of
chapter 46 of title 18, United States Code, relating to civil
forfeitures, except that such duties as are imposed upon the
Secretary of the Treasury under the customs laws described in
section 981(d) shall be performed by such officers, agents,
and other persons as may be designated for that purpose by
the Secretary of Homeland Security, the Attorney General, or
the Secretary of Defense.''.
SEC. 802. NEW SECTION 2280A OF TITLE 18, UNITED STATES CODE.
(a) In General.--Chapter 111 of title 18, United States
Code, is amended by adding after section 2280 the following
new section:
``Sec. 2280a. Violence against maritime navigation and
maritime transport involving weapons of mass destruction
``(a) Offenses.--
``(1) In general.--Subject to the exceptions in subsection
(c), a person who unlawfully and intentionally--
``(A) when the purpose of the act, by its nature or
context, is to intimidate a population, or to compel a
government or an international organization to do or to
abstain from doing any act--
``(i) uses against or on a ship or discharges from a ship
any explosive or radioactive material, biological, chemical,
or nuclear weapon or other nuclear explosive device in a
manner that causes or is likely to cause death to any person
or serious injury or damage;
``(ii) discharges from a ship oil, liquefied natural gas,
or another hazardous or noxious substance that is not covered
by clause (i), in such quantity or concentration that causes
or is likely to cause death to any person or serious injury
or damage; or
``(iii) uses a ship in a manner that causes death to any
person or serious injury or damage;
``(B) transports on board a ship--
``(i) any explosive or radioactive material, knowing that
it is intended to be used to cause, or in a threat to cause,
death to any person or serious injury or damage for the
purpose of intimidating a population, or compelling a
government or an international organization to do or to
abstain from doing any act;
``(ii) any biological, chemical, or nuclear weapon or other
nuclear explosive device, knowing it to be a biological,
chemical, or nuclear weapon or other nuclear explosive
device;
``(iii) any source material, special fissionable material,
or equipment or material especially designed or prepared for
the processing, use, or production of special fissionable
material, knowing that it is intended to be used in a nuclear
explosive activity or in any other nuclear activity not under
safeguards pursuant to an International Atomic Energy Agency
comprehensive safeguards agreement, except where--
``(I) such item is transported to or from the territory of,
or otherwise under the control of, a Non-Proliferation Treaty
State Party; and
``(II) the resulting transfer or receipt (including
internal to a country) is not contrary to the obligations
under the Non-Proliferation Treaty of the Non-Proliferation
Treaty State Party from which, to the territory of which, or
otherwise under the control of which such item is
transferred;
``(iv) any equipment, materials, or software or related
technology that significantly contributes to the design or
manufacture of a nuclear weapon or other nuclear explosive
device, with the intention that it will be used for such
purpose, except where--
``(I) the country to the territory of which or under the
control of which such item is transferred is a Nuclear Weapon
State Party to the Non-Proliferation Treaty; and
``(II) the resulting transfer or receipt (including
internal to a country) is not contrary to the obligations
under the Non-Proliferation Treaty of a Non-Proliferation
Treaty State Party from which, to the territory of which, or
otherwise under the control of which such item is
transferred;
``(v) any equipment, materials, or software or related
technology that significantly contributes to the delivery of
a nuclear weapon or other nuclear explosive device, with the
intention that it will be used for such purpose, except
where--
``(I) such item is transported to or from the territory of,
or otherwise under the control of, a Non-Proliferation Treaty
State Party; and
``(II) such item is intended for the delivery system of a
nuclear weapon or other nuclear explosive device of a Nuclear
Weapon State Party to the Non-Proliferation Treaty; or
[[Page S3357]]
``(vi) any equipment, materials, or software or related
technology that significantly contributes to the design,
manufacture, or delivery of a biological or chemical weapon,
with the intention that it will be used for such purpose;
``(C) transports another person on board a ship knowing
that the person has committed an act that constitutes an
offense under section 2280 or subparagraph (A), (B), (D), or
(E) of this section or an offense set forth in an applicable
treaty, as specified in section 2280(d)(1), and intending to
assist that person to evade criminal prosecution;
``(D) injures or kills any person in connection with the
commission or the attempted commission of any of the offenses
set forth in subparagraphs (A) through (C), or subsection
(a)(2), to the extent that the subsection (a)(2) offense
pertains to subparagraph (A); or
``(E) attempts to do any act prohibited under subparagraph
(A), (B) or (D), or conspires to do any act prohibited by
subparagraphs (A) through (E) or subsection (a)(2),
shall be fined under this title, imprisoned not more than 20
years, or both; and if the death of any person results from
conduct prohibited by this paragraph, shall be imprisoned for
any term of years or for life.
``(2) Threats.--A person who threatens, with apparent
determination and will to carry the threat into execution, to
do any act prohibited under paragraph (1)(A) shall be fined
under this title, imprisoned not more than 5 years, or both.
``(b) Jurisdiction.--There is jurisdiction over the
activity prohibited in subsection (a)--
``(1) in the case of a covered ship, if--
``(A) such activity is committed--
``(i) against or on board a vessel of the United States or
a vessel subject to the jurisdiction of the United States (as
defined in section 70502 of title 46) at the time the
prohibited activity is committed;
``(ii) in the United States, including the territorial
seas; or
``(iii) by a national of the United States, by a United
States corporation or legal entity, or by a stateless person
whose habitual residence is in the United States;
``(B) during the commission of such activity, a national of
the United States is seized, threatened, injured, or killed;
or
``(C) the offender is later found in the United States
after such activity is committed;
``(2) in the case of a ship navigating or scheduled to
navigate solely within the territorial sea or internal waters
of a country other than the United States, if the offender is
later found in the United States after such activity is
committed; or
``(3) in the case of any vessel, if such activity is
committed in an attempt to compel the United States to do or
abstain from doing any act.
``(c) Exceptions.--This section shall not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.
``(d)(1) Civil Forfeiture.--Any real or personal property
used or intended to be used to commit or to facilitate the
commission of a violation of this section, the gross proceeds
of such violation, and any real or personal property
traceable to such property or proceeds, shall be subject to
forfeiture.
``(2) Applicable Procedures.--Seizures and forfeitures
under this section shall be governed by the provisions of
chapter 46 of title 18, United States Code, relating to civil
forfeitures, except that such duties as are imposed upon the
Secretary of the Treasury under the customs laws described in
section 981(d) shall be performed by such officers, agents,
and other persons as may be designated for that purpose by
the Secretary of Homeland Security, the Attorney General, or
the Secretary of Defense.''.
(b) Conforming Amendment.--The table of sections at the
beginning of chapter 111 of title 18, United States Code, is
amended by adding after the item relating to section 2280 the
following new item:
``2280a. Violence against maritime navigation and maritime transport
involving weapons of mass destruction.''.
SEC. 803. AMENDMENTS TO SECTION 2281 OF TITLE 18, UNITED
STATES CODE.
Section 2281 of title 18, United States Code, is amended--
(1) in subsection (c), by striking ``section 2(c)'' and
inserting ``section 13(c)'';
(2) in subsection (d), by striking the definitions of
``national of the United States,'' ``territorial sea of the
United States,'' and ``United States''; and
(3) by inserting after subsection (d) the following:
``(e) Exceptions.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.''.
SEC. 804. NEW SECTION 2281A OF TITLE 18, UNITED STATES CODE.
(a) In General.--Chapter 111 of title 18, United States
Code, is amended by adding after section 2281 the following
new section:
``Sec. 2281a. Additional offenses against maritime fixed
platforms
``(a) Offenses.--
``(1) In general.--A person who unlawfully and
intentionally--
``(A) when the purpose of the act, by its nature or
context, is to intimidate a population, or to compel a
government or an international organization to do or to
abstain from doing any act--
``(i) uses against or on a fixed platform or discharges
from a fixed platform any explosive or radioactive material,
biological, chemical, or nuclear weapon in a manner that
causes or is likely to cause death or serious injury or
damage; or
``(ii) discharges from a fixed platform oil, liquefied
natural gas, or another hazardous or noxious substance that
is not covered by clause (i), in such quantity or
concentration that causes or is likely to cause death or
serious injury or damage;
``(B) injures or kills any person in connection with the
commission or the attempted commission of any of the offenses
set forth in subparagraph (A); or
``(C) attempts or conspires to do anything prohibited under
subparagraph (A) or (B),
shall be fined under this title, imprisoned not more than 20
years, or both; and if death results to any person from
conduct prohibited by this paragraph, shall be imprisoned for
any term of years or for life.
``(2) Threat to safety.--A person who threatens, with
apparent determination and will to carry the threat into
execution, to do any act prohibited under paragraph (1)(A),
shall be fined under this title, imprisoned not more than 5
years, or both.
``(b) Jurisdiction.--There is jurisdiction over the
activity prohibited in subsection (a) if--
``(1) such activity is committed against or on board a
fixed platform--
``(A) that is located on the continental shelf of the
United States;
``(B) that is located on the continental shelf of another
country, by a national of the United States or by a stateless
person whose habitual residence is in the United States; or
``(C) in an attempt to compel the United States to do or
abstain from doing any act;
``(2) during the commission of such activity against or on
board a fixed platform located on a continental shelf, a
national of the United States is seized, threatened, injured,
or killed; or
``(3) such activity is committed against or on board a
fixed platform located outside the United States and beyond
the continental shelf of the United States and the offender
is later found in the United States.
``(c) Exceptions.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.
``(d) Definitions.--In this section--
``(1) `continental shelf' means the sea-bed and subsoil of
the submarine areas that extend beyond a country's
territorial sea to the limits provided by customary
international law as reflected in Article 76 of the 1982
Convention on the Law of the Sea; and
``(2) `fixed platform' means an artificial island,
installation, or structure permanently attached to the sea-
bed for the purpose of exploration or exploitation of
resources or for other economic purposes.''.
(b) Conforming Amendment.--The table of sections at the
beginning of chapter 111 of title 18, United States Code, is
amended by adding after the item relating to section 2281 the
following new item:
``2281a. Additional offenses against maritime fixed platforms.''.
SEC. 805. ANCILLARY MEASURE.
Section 2332b(g)(5)(B) of title 18, United States Code, is
amended by inserting ``2280a (relating to maritime safety),''
before ``2281'', and by striking ``2281'' and inserting
``2281 through 2281a''.
Subtitle B--Prevention of Nuclear Terrorism
SEC. 811. NEW SECTION 2332I OF TITLE 18, UNITED STATES CODE.
(a) In General.--Chapter 113B of title 18, United States
Code, is amended by adding after section 2332h the following:
``Sec. 2332i. Acts of nuclear terrorism
``(a) Offenses.--
``(1) In general.--Whoever knowingly and unlawfully--
``(A) possesses radioactive material or makes or possesses
a device--
``(i) with the intent to cause death or serious bodily
injury; or
``(ii) with the intent to cause substantial damage to
property or the environment; or
``(B) uses in any way radioactive material or a device, or
uses or damages or interferes with the operation of a nuclear
facility in a manner that causes the release of or increases
the risk of the release of radioactive material, or causes
radioactive contamination or exposure to radiation--
``(i) with the intent to cause death or serious bodily
injury or with the knowledge that such act is likely to cause
death or serious bodily injury;
``(ii) with the intent to cause substantial damage to
property or the environment or with the knowledge that such
act is likely to cause substantial damage to property or the
environment; or
``(iii) with the intent to compel a person, an
international organization or a country to do or refrain from
doing an act,
[[Page S3358]]
shall be punished as prescribed in subsection (c).
``(2) Threats.--Whoever, under circumstances in which the
threat may reasonably be believed, threatens to commit an
offense under paragraph (1) shall be punished as prescribed
in subsection (c). Whoever demands possession of or access to
radioactive material, a device or a nuclear facility by
threat or by use of force shall be punished as prescribed in
subsection (c).
``(3) Attempts and conspiracies.--Whoever attempts to
commit an offense under paragraph (1) or conspires to commit
an offense under paragraph (1) or (2) shall be punished as
prescribed in subsection (c).
``(b) Jurisdiction.--Conduct prohibited by subsection (a)
is within the jurisdiction of the United States if--
``(1) the prohibited conduct takes place in the United
States or the special aircraft jurisdiction of the United
States;
``(2) the prohibited conduct takes place outside of the
United States and--
``(A) is committed by a national of the United States, a
United States corporation or legal entity or a stateless
person whose habitual residence is in the United States;
``(B) is committed on board a vessel of the United States
or a vessel subject to the jurisdiction of the United States
(as defined in section 70502 of title 46) or on board an
aircraft that is registered under United States law, at the
time the offense is committed; or
``(C) is committed in an attempt to compel the United
States to do or abstain from doing any act, or constitutes a
threat directed at the United States;
``(3) the prohibited conduct takes place outside of the
United States and a victim or an intended victim is a
national of the United States or a United States corporation
or legal entity, or the offense is committed against any
state or government facility of the United States; or
``(4) a perpetrator of the prohibited conduct is found in
the United States.
``(c) Penalties.--Whoever violates this section shall be
fined not more than $2,000,000 and shall be imprisoned for
any term of years or for life.
``(d) Nonapplicability.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.
``(e) Definitions.--As used in this section, the term--
``(1) `armed conflict' has the meaning given that term in
section 2332f(e)(11) of this title;
``(2) `device' means:
``(A) any nuclear explosive device; or
``(B) any radioactive material dispersal or radiation-
emitting device that may, owing to its radiological
properties, cause death, serious bodily injury or substantial
damage to property or the environment;
``(3) `international organization' has the meaning given
that term in section 831(f)(3) of this title;
``(4) `military forces of a state' means the armed forces
of a country that are organized, trained and equipped under
its internal law for the primary purpose of national defense
or security and persons acting in support of those armed
forces who are under their formal command, control and
responsibility;
``(5) `national of the United States' has the meaning given
that term in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22));
``(6) `nuclear facility' means:
``(A) any nuclear reactor, including reactors on vessels,
vehicles, aircraft or space objects for use as an energy
source in order to propel such vessels, vehicles, aircraft or
space objects or for any other purpose;
``(B) any plant or conveyance being used for the
production, storage, processing or transport of radioactive
material; or
``(C) a facility (including associated buildings and
equipment) in which nuclear material is produced, processed,
used, handled, stored or disposed of, if damage to or
interference with such facility could lead to the release of
significant amounts of radiation or radioactive material;
``(7) `nuclear material' has the meaning given that term in
section 831(f)(1) of this title;
``(8) `radioactive material' means nuclear material and
other radioactive substances that contain nuclides that
undergo spontaneous disintegration (a process accompanied by
emission of one or more types of ionizing radiation, such as
alpha-, beta-, neutron particles and gamma rays) and that
may, owing to their radiological or fissile properties, cause
death, serious bodily injury or substantial damage to
property or to the environment;
``(9) `serious bodily injury' has the meaning given that
term in section 831(f)(4) of this title;
``(10) `state' has the same meaning as that term has under
international law, and includes all political subdivisions
thereof;
``(11) `state or government facility' has the meaning given
that term in section 2332f(e)(3) of this title;
``(12) `United States corporation or legal entity' means
any corporation or other entity organized under the laws of
the United States or any State, Commonwealth, territory,
possession or district of the United States;
``(13) `vessel' has the meaning given that term in section
1502(19) of title 33; and
``(14) `vessel of the United States' has the meaning given
that term in section 70502 of title 46.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 113B of title 18, United States Code, is
amended by inserting after the item relating to section 2332h
the following:
``2332i. Acts of nuclear terrorism.''.
(c) Disclaimer.--Nothing contained in this section is
intended to affect the applicability of any other Federal or
State law that might pertain to the underlying conduct.
(d) Inclusion in Definition of Federal Crimes of
Terrorism.--Section 2332b(g)(5)(B) of title 18, United States
Code, is amended by inserting ``2332i (relating to acts of
nuclear terrorism),'' before ``2339 (relating to harboring
terrorists)''.
SEC. 812. AMENDMENT TO SECTION 831 OF TITLE 18, UNITED STATES
CODE.
Section 831 of title 18, United States Code, is amended--
(a) in subsection (a)--
(1) by redesignating paragraphs (3) through (8) as
paragraphs (4) through (9);
(2) by inserting after paragraph (2) the following:
``(3) without lawful authority, intentionally carries,
sends or moves nuclear material into or out of a country;'';
(3) in paragraph (8), as redesignated, by striking ``an
offense under paragraph (1), (2), (3), or (4)'' and inserting
``any act prohibited under paragraphs (1) through (5)''; and
(4) in paragraph (9), as redesignated, by striking ``an
offense under paragraph (1), (2), (3), or (4)'' and inserting
``any act prohibited under paragraphs (1) through (7)'';
(b) in subsection (b)--
(1) in paragraph (1), by striking ``(7)'' and inserting
``(8)''; and
(2) in paragraph (2), by striking ``(8)'' and inserting
``(9)'';
(c) in subsection (c)--
(1) in subparagraph (2)(A), by adding after ``United
States'' the following: ``or a stateless person whose
habitual residence is in the United States'';
(2) by striking paragraph (5);
(3) in paragraph (4), by striking ``or'' at the end; and
(4) by inserting after paragraph (4), the following:
``(5) the offense is committed on board a vessel of the
United States or a vessel subject to the jurisdiction of the
United States (as defined in section 70502 of title 46) or on
board an aircraft that is registered under United States law,
at the time the offense is committed;
``(6) the offense is committed outside the United States
and against any state or government facility of the United
States; or
``(7) the offense is committed in an attempt to compel the
United States to do or abstain from doing any act, or
constitutes a threat directed at the United States.'';
(d) by redesignating subsections (d) through (f) as (e)
through (g), respectively;
(e) by inserting after subsection (c) the following:
``(d) Nonapplicability.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.''; and
(f) in subsection (g), as redesignated--
(1) in paragraph (6), by striking ``and'' at the end;
(2) in paragraph (7), by striking the period at the end and
inserting a semicolon; and
(3) by inserting after paragraph (7), the following:
``(8) the term `armed conflict' has the meaning given that
term in section 2332f(e)(11) of this title;
``(9) the term `military forces of a state' means the armed
forces of a country that are organized, trained and equipped
under its internal law for the primary purpose of national
defense or security and persons acting in support of those
armed forces who are under their formal command, control and
responsibility;
``(10) the term `state' has the same meaning as that term
has under international law, and includes all political
subdivisions thereof;
``(11) the term `state or government facility' has the
meaning given that term in section 2332f(e)(3) of this title;
and
``(12) the term `vessel of the United States' has the
meaning given that term in section 70502 of title 46.''.
______
SA 1450. Mr. McCONNELL proposed an amendment to amendment SA 1449
proposed by Mr. McConnell (for himself and Mr. Burr) to the bill H.R.
2048, to reform the authorities of the Federal Government to require
the production of certain business records, conduct electronic
surveillance, use pen registers and trap and trace devices, and use
other forms of information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other purposes; as
follows:
Strike Sec. 110(a) and insert the following:
(a) In General.--The amendments made by sections 101
through 103 shall take effect on the date that is 12 months
after the date of the enactment of this Act.
[[Page S3359]]
______
SA 1451. Mr. McCONNELL proposed an amendment to amendment SA 1450
proposed by Mr. McConnell to the amendment SA 1449 proposed by Mr.
McConnell (for himself and Mr. Burr) to the bill H.R. 2048, to reform
the authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; as follows:
At the end, add the following:
(b) Noneffect of Certain Provisions.--Section 401 of this
Act, relating to appointment of amicus curiae, shall have no
force or effect.
SEC. 110A. APPOINTMENT OF AMICUS CURIAE.
Section 103 (50 U.S.C. 1803) is amended by adding at the
end the following new subsections:
``(i) Amicus Curiae.--
``(1) Authorization.--A court established under subsection
(a) or (b) is authorized, consistent with the requirement of
subsection (c) and any other statutory requirement that the
court act expeditiously or within a stated time--
``(A) to appoint amicus curiae to--
``(i) assist the court in the consideration of any
application for an order or review that, in the opinion of
the court, presents a novel or significant interpretation of
the law; or
``(ii) provide technical expertise in any instance the
court considers appropriate; or
``(B) upon motion, to permit an individual or organization
leave to file an amicus curiae brief.
``(2) Designation.--The courts established by subsection
(a) and (b) shall each designate 1 or more individuals who
may be appointed to serve as amicus curiae and who are
determined to be eligible for access to classified national
security information necessary to participate in matters
before such courts (if such access is necessary for
participation in the matters for which they may be
appointed). In appointing an amicus curiae pursuant to
paragraph (1), the court may choose from among those so
designated.
``(3) Expertise.--An individual appointed as an amicus
curiae under paragraph (1) may be an individual who possesses
expertise on privacy and civil liberties, intelligence
collection, communications technology, or any other area that
may lend legal or technical expertise to the court.
``(4) Duties.--An amicus curiae appointed under paragraph
(1) to assist with the consideration of a covered matter
shall carry out the duties assigned by the appointing court.
That court may authorize the amicus curiae to review any
application, certification, petition, motion, or other
submission that the court determines is relevant to the
duties assigned by the court.
``(5) Notification.--A court established under subsection
(a) or (b) shall notify the Attorney General of each exercise
of the authority to appoint an amicus curiae under paragraph
(1).
``(6) Assistance.--A court established under subsection (a)
or (b) may request and receive (including on a non-
reimbursable basis) the assistance of the executive branch in
the implementation of this subsection.
``(7) Administration.--A court established under subsection
(a) or (b) may provide for the designation, appointment,
removal, training, or other support of an amicus curiae
appointed under paragraph (1) in a manner that is not
inconsistent with this subsection.
``(j) Review of FISA Court Decisions.--Following issuance
of an order under this Act, a court established under
subsection (a) shall certify for review to the court
established under subsection (b) any question of law that may
affect resolution of the matter in controversy that the court
determines warrants such review because of a need for
uniformity or because consideration by the court established
under subsection (b) would serve the interests of justice.
Upon certification of a question of law under this
subsection, the court established under subsection (b) may
give binding instructions or require the entire record to be
sent up for decision of the entire matter in controversy.
``(k) Review of FISA Court of Review Decisions.--
``(1) Certification.--For purposes of section 1254(2) of
title 28, United States Code, the court of review established
under subsection (b) shall be considered to be a court of
appeals.
``(2) Amicus curiae briefing.--Upon certification of an
application under paragraph (1), the Supreme Court of the
United States may appoint an amicus curiae designated under
subsection (i)(3), or any other person, to provide briefing
or other assistance.''.
______
SA 1452. Mr. McCONNELL (for himself and Mr. Burr) proposed an
amendment to the bill H.R. 2048, to reform the authorities of the
Federal Government to require the production of certain business
records, conduct electronic surveillance, use pen registers and trap
and trace devices, and use other forms of information gathering for
foreign intelligence, counterterrorism, and criminal purposes, and for
other purposes; as follows:
Strike all after the first word and insert the following:
1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Uniting
and Strengthening America by Fulfilling Rights and Ensuring
Effective Discipline Over Monitoring Act of 2015'' or the
``USA FREEDOM Act of 2015''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
1. Short title; table of contents.
2. Amendments to the Foreign Intelligence Surveillance Act of 1978.
TITLE I--FISA BUSINESS RECORDS REFORMS
101. Additional requirements for call detail records.
102. Emergency authority.
103. Prohibition on bulk collection of tangible things.
104. Judicial review.
105. Liability protection.
106. Compensation for assistance.
107. Notice to the Attorney General on changes in retention of call
detail records.
108. Definitions.
109. Inspector General reports on business records orders.
110. Effective date.
111. Rule of construction.
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
201. Prohibition on bulk collection.
202. Privacy procedures.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
301. Limits on use of unlawfully obtained information.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
401. Appointment of amicus curiae.
TITLE V--NATIONAL SECURITY LETTER REFORM
501. Prohibition on bulk collection.
502. Limitations on disclosure of national security letters.
503. Judicial review.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
601. Additional reporting on orders requiring production of business
records; business records compliance reports to Congress.
602. Annual reports by the Government.
603. Public reporting by persons subject to FISA orders.
604. Reporting requirements for decisions, orders, and opinions of the
Foreign Intelligence Surveillance Court and the Foreign
Intelligence Surveillance Court of Review.
605. Submission of reports under FISA.
TITLE VII--ENHANCED NATIONAL SECURITY PROVISIONS
701. Emergencies involving non-United States persons.
702. Preservation of treatment of non-United States persons traveling
outside the United States as agents of foreign powers.
703. Improvement to investigations of international proliferation of
weapons of mass destruction.
704. Increase in penalties for material support of foreign terrorist
organizations.
705. Sunsets.
TITLE VIII--SAFETY OF MARITIME NAVIGATION AND NUCLEAR TERRORISM
CONVENTIONS IMPLEMENTATION
Subtitle A--Safety of Maritime Navigation
801. Amendment to section 2280 of title 18, United States Code.
802. New section 2280a of title 18, United States Code.
803. Amendments to section 2281 of title 18, United States Code.
804. New section 2281a of title 18, United States Code.
805. Ancillary measure.
Subtitle B--Prevention of Nuclear Terrorism
811. New section 2332i of title 18, United States Code.
812. Amendment to section 831 of title 18, United States Code.
SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT OF 1978.
Except as otherwise expressly provided, whenever in this
Act an amendment or repeal is expressed in terms of an
amendment to, or a repeal of, a section or other provision,
the reference shall be considered to be made to a section or
other provision of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.).
TITLE I--FISA BUSINESS RECORDS REFORMS
SEC. 101. ADDITIONAL REQUIREMENTS FOR CALL DETAIL RECORDS.
(a) Application.--Section 501(b)(2) (50 U.S.C. 1861(b)(2))
is amended--
(1) in subparagraph (A)--
(A) in the matter preceding clause (i), by striking ``a
statement'' and inserting ``in the case of an application
other than an application described in subparagraph (C)
(including an application for the production of call detail
records other than in the manner described in subparagraph
(C)), a statement''; and
(B) in clause (iii), by striking ``; and'' and inserting a
semicolon;
(2) by redesignating subparagraphs (A) and (B) as
subparagraphs (B) and (D), respectively; and
[[Page S3360]]
(3) by inserting after subparagraph (B) (as so
redesignated) the following new subparagraph:
``(C) in the case of an application for the production on
an ongoing basis of call detail records created before, on,
or after the date of the application relating to an
authorized investigation (other than a threat assessment)
conducted in accordance with subsection (a)(2) to protect
against international terrorism, a statement of facts showing
that--
``(i) there are reasonable grounds to believe that the call
detail records sought to be produced based on the specific
selection term required under subparagraph (A) are relevant
to such investigation; and
``(ii) there is a reasonable, articulable suspicion that
such specific selection term is associated with a foreign
power engaged in international terrorism or activities in
preparation therefor, or an agent of a foreign power engaged
in international terrorism or activities in preparation
therefor; and''.
(b) Order.--Section 501(c)(2) (50 U.S.C. 1861(c)(2)) is
amended--
(1) in subparagraph (D), by striking ``; and'' and
inserting a semicolon;
(2) in subparagraph (E), by striking the period and
inserting ``; and''; and
(3) by adding at the end the following new subparagraph:
``(F) in the case of an application described in subsection
(b)(2)(C), shall--
``(i) authorize the production on a daily basis of call
detail records for a period not to exceed 180 days;
``(ii) provide that an order for such production may be
extended upon application under subsection (b) and the
judicial finding under paragraph (1) of this subsection;
``(iii) provide that the Government may require the prompt
production of a first set of call detail records using the
specific selection term that satisfies the standard required
under subsection (b)(2)(C)(ii);
``(iv) provide that the Government may require the prompt
production of a second set of call detail records using
session-identifying information or a telephone calling card
number identified by the specific selection term used to
produce call detail records under clause (iii);
``(v) provide that, when produced, such records be in a
form that will be useful to the Government;
``(vi) direct each person the Government directs to produce
call detail records under the order to furnish the Government
forthwith all information, facilities, or technical
assistance necessary to accomplish the production in such a
manner as will protect the secrecy of the production and
produce a minimum of interference with the services that such
person is providing to each subject of the production; and
``(vii) direct the Government to--
``(I) adopt minimization procedures that require the prompt
destruction of all call detail records produced under the
order that the Government determines are not foreign
intelligence information; and
``(II) destroy all call detail records produced under the
order as prescribed by such procedures.''.
SEC. 102. EMERGENCY AUTHORITY.
(a) Authority.--Section 501 (50 U.S.C. 1861) is amended by
adding at the end the following new subsection:
``(i) Emergency Authority for Production of Tangible
Things.--
``(1) Notwithstanding any other provision of this section,
the Attorney General may require the emergency production of
tangible things if the Attorney General--
``(A) reasonably determines that an emergency situation
requires the production of tangible things before an order
authorizing such production can with due diligence be
obtained;
``(B) reasonably determines that the factual basis for the
issuance of an order under this section to approve such
production of tangible things exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under this section at the time the
Attorney General requires the emergency production of
tangible things that the decision has been made to employ the
authority under this subsection; and
``(D) makes an application in accordance with this section
to a judge having jurisdiction under this section as soon as
practicable, but not later than 7 days after the Attorney
General requires the emergency production of tangible things
under this subsection.
``(2) If the Attorney General requires the emergency
production of tangible things under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this section for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving the
production of tangible things under this subsection, the
production shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time the Attorney
General begins requiring the emergency production of such
tangible things, whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) If such application for approval is denied, or in any
other case where the production of tangible things is
terminated and no order is issued approving the production,
no information obtained or evidence derived from such
production 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 a political subdivision
thereof, and no information concerning any United States
person acquired from such production 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.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''.
(b) Conforming Amendment.--Section 501(d) (50 U.S.C.
1861(d)) is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by striking
``pursuant to an order'' and inserting ``pursuant to an order
issued or an emergency production required'';
(B) in subparagraph (A), by striking ``such order'' and
inserting ``such order or such emergency production''; and
(C) in subparagraph (B), by striking ``the order'' and
inserting ``the order or the emergency production''; and
(2) in paragraph (2)--
(A) in subparagraph (A), by striking ``an order'' and
inserting ``an order or emergency production''; and
(B) in subparagraph (B), by striking ``an order'' and
inserting ``an order or emergency production''.
SEC. 103. PROHIBITION ON BULK COLLECTION OF TANGIBLE THINGS.
(a) Application.--Section 501(b)(2) (50 U.S.C. 1861(b)(2)),
as amended by section 101(a) of this Act, is further amended
by inserting before subparagraph (B), as redesignated by such
section 101(a) of this Act, the following new subparagraph:
``(A) a specific selection term to be used as the basis for
the production of the tangible things sought;''.
(b) Order.--Section 501(c) (50 U.S.C. 1861(c)) is amended--
(1) in paragraph (2)(A), by striking the semicolon and
inserting ``, including each specific selection term to be
used as the basis for the production;''; and
(2) by adding at the end the following new paragraph:
``(3) No order issued under this subsection may authorize
the collection of tangible things without the use of a
specific selection term that meets the requirements of
subsection (b)(2).''.
SEC. 104. JUDICIAL REVIEW.
(a) Minimization Procedures.--
(1) Judicial review.--Section 501(c)(1) (50 U.S.C.
1861(c)(1)) is amended by inserting after ``subsections (a)
and (b)'' the following: ``and that the minimization
procedures submitted in accordance with subsection (b)(2)(D)
meet the definition of minimization procedures under
subsection (g)''.
(2) Rule of construction.--Section 501(g) (50 U.S.C.
1861(g)) is amended by adding at the end the following new
paragraph:
``(3) Rule of construction.--Nothing in this subsection
shall limit the authority of the court established under
section 103(a) to impose additional, particularized
minimization procedures with regard to the production,
retention, or dissemination of nonpublicly available
information concerning unconsenting United States persons,
including additional, particularized procedures related to
the destruction of information within a reasonable time
period.''.
(3) Technical and conforming amendment.--Section 501(g)(1)
(50 U.S.C. 1861(g)(1)) is amended--
(A) by striking ``Not later than 180 days after the date of
the enactment of the USA PATRIOT Improvement and
Reauthorization Act of 2005, the'' and inserting ``The''; and
(B) by inserting after ``adopt'' the following: ``, and
update as appropriate,''.
(b) Orders.--Section 501(f)(2) (50 U.S.C. 1861(f)(2)) is
amended--
(1) in subparagraph (A)(i)--
(A) by striking ``that order'' and inserting ``the
production order or any nondisclosure order imposed in
connection with the production order''; and
(B) by striking the second sentence; and
(2) in subparagraph (C)--
(A) by striking clause (ii); and
(B) by redesignating clause (iii) as clause (ii).
SEC. 105. LIABILITY PROTECTION.
Section 501(e) (50 U.S.C. 1861(e)) is amended to read as
follows:
``(e)(1) No cause of action shall lie in any court against
a person who--
``(A) produces tangible things or provides information,
facilities, or technical assistance in accordance with an
order issued or an emergency production required under this
section; or
``(B) otherwise provides technical assistance to the
Government under this section or to implement the amendments
made to this section by the USA FREEDOM Act of 2015.
``(2) A production or provision of information, facilities,
or technical assistance described in paragraph (1) shall not
be deemed to constitute a waiver of any privilege in any
other proceeding or context.''.
SEC. 106. COMPENSATION FOR ASSISTANCE.
Section 501 (50 U.S.C. 1861), as amended by section 102 of
this Act, is further amended by adding at the end the
following new subsection:
[[Page S3361]]
``(j) Compensation.--The Government shall compensate a
person for reasonable expenses incurred for--
``(1) producing tangible things or providing information,
facilities, or assistance in accordance with an order issued
with respect to an application described in subsection
(b)(2)(C) or an emergency production under subsection (i)
that, to comply with subsection (i)(1)(D), requires an
application described in subsection (b)(2)(C); or
``(2) otherwise providing technical assistance to the
Government under this section or to implement the amendments
made to this section by the USA FREEDOM Act of 2015.''.
SEC. 107. NOTICE TO THE ATTORNEY GENERAL ON CHANGES IN
RETENTION OF CALL DETAIL RECORDS.
Section 501 (50 U.S.C. 1861), as amended by section 106 of
this Act, is amended by adding at the end the following new
subsection:
``(k) Prospective Changes to Existing Practices Related to
Call Detail Records.--
``(1) In general.--Consistent with subsection (c)(2)(F), an
electronic communication service provider that has been
issued an order to produce call detail records pursuant to an
order under subsection (c) shall notify the Attorney General
if that service provider intends to retain its call detail
records for a period less than 18 months.
``(2) Timing of notice.--A notification under paragraph (1)
shall be made not less than 180 days prior to the date such
electronic communications service provider intends to
implement a policy to retain such records for a period less
than 18 months.''.
SEC. 108. DEFINITIONS.
Section 501 (50 U.S.C. 1861), as amended by section 107 of
this Act, is further amended by adding at the end the
following new subsection:
``(l) Definitions.--In this section:
``(1) In general.--The terms `foreign power', `agent of a
foreign power', `international terrorism', `foreign
intelligence information', `Attorney General', `United States
person', `United States', `person', and `State' have the
meanings provided those terms in section 101.
``(2) Address.--The term `address' means a physical address
or electronic address, such as an electronic mail address or
temporarily assigned network address (including an Internet
protocol address).
``(3) Call detail record.--The term `call detail record'--
``(A) means session-identifying information (including an
originating or terminating telephone number, an International
Mobile Subscriber Identity number, or an International Mobile
Station Equipment Identity number), a telephone calling card
number, or the time or duration of a call; and
``(B) does not include--
``(i) the contents (as defined in section 2510(8) of title
18, United States Code) of any communication;
``(ii) the name, address, or financial information of a
subscriber or customer; or
``(iii) cell site location or global positioning system
information.
``(4) Specific selection term.--
``(A) Tangible things.--
``(i) In general.--Except as provided in subparagraph (B),
a `specific selection term'--
``(I) is a term that specifically identifies a person,
account, address, or personal device, or any other specific
identifier; and
``(II) is used to limit, to the greatest extent reasonably
practicable, the scope of tangible things sought consistent
with the purpose for seeking the tangible things.
``(ii) Limitation.--A specific selection term under clause
(i) does not include an identifier that does not limit, to
the greatest extent reasonably practicable, the scope of
tangible things sought consistent with the purpose for
seeking the tangible things, such as an identifier that--
``(I) identifies an electronic communication service
provider (as that term is defined in section 701) or a
provider of remote computing service (as that term is defined
in section 2711 of title 18, United States Code), when not
used as part of a specific identifier as described in clause
(i), unless the provider is itself a subject of an authorized
investigation for which the specific selection term is used
as the basis for the production; or
``(II) identifies a broad geographic region, including the
United States, a city, a county, a State, a zip code, or an
area code, when not used as part of a specific identifier as
described in clause (i).
``(iii) Rule of construction.--Nothing in this paragraph
shall be construed to preclude the use of multiple terms or
identifiers to meet the requirements of clause (i).
``(B) Call detail record applications.--For purposes of an
application submitted under subsection (b)(2)(C), the term
`specific selection term' means a term that specifically
identifies an individual, account, or personal device.''.
SEC. 109. INSPECTOR GENERAL REPORTS ON BUSINESS RECORDS
ORDERS.
Section 106A of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 120 Stat.
200) is amended--
(1) in subsection (b)--
(A) in paragraph (1), by inserting ``and calendar years
2012 through 2014'' after ``2006'';
(B) by striking paragraphs (2) and (3);
(C) by redesignating paragraphs (4) and (5) as paragraphs
(2) and (3), respectively; and
(D) in paragraph (3) (as so redesignated)--
(i) by striking subparagraph (C) and inserting the
following new subparagraph:
``(C) with respect to calendar years 2012 through 2014, an
examination of the minimization procedures used in relation
to orders under section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) and whether the
minimization procedures adequately protect the constitutional
rights of United States persons;''; and
(ii) in subparagraph (D), by striking ``(as such term is
defined in section 3(4) of the National Security Act of 1947
(50 U.S.C. 401a(4)))'';
(2) in subsection (c), by adding at the end the following
new paragraph:
``(3) Calendar years 2012 through 2014.--Not later than 1
year after the date of enactment of the USA FREEDOM Act of
2015, 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
subsection (a) for calendar years 2012 through 2014.'';
(3) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(4) by inserting after subsection (c) the following new
subsection:
``(d) Intelligence Assessment.--
``(1) In general.--For the period beginning on January 1,
2012, and ending on December 31, 2014, the Inspector General
of the Intelligence Community shall assess--
``(A) the importance of the information acquired under
title V of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1861 et seq.) to the activities of the
intelligence community;
``(B) the manner in which that information was collected,
retained, analyzed, and disseminated by the intelligence
community;
``(C) the minimization procedures used by elements of the
intelligence community under such title and whether the
minimization procedures adequately protect the constitutional
rights of United States persons; and
``(D) any minimization procedures proposed by an element of
the intelligence community under such title that were
modified or denied by the court established under section
103(a) of such Act (50 U.S.C. 1803(a)).
``(2) Submission date for assessment.--Not later than 180
days after the date on which the Inspector General of the
Department of Justice submits the report required under
subsection (c)(3), the Inspector General of the Intelligence
Community 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 assessment for calendar years
2012 through 2014.'';
(5) in subsection (e), as redesignated by paragraph (3)--
(A) in paragraph (1)--
(i) by striking ``a report under subsection (c)(1) or
(c)(2)'' and inserting ``any report under subsection (c) or
(d)''; and
(ii) by striking ``Inspector General of the Department of
Justice'' and inserting ``Inspector General of the Department
of Justice, the Inspector General of the Intelligence
Community, and any Inspector General of an element of the
intelligence community that prepares a report to assist the
Inspector General of the Department of Justice or the
Inspector General of the Intelligence Community in complying
with the requirements of this section''; and
(B) in paragraph (2), by striking ``the reports submitted
under subsections (c)(1) and (c)(2)'' and inserting ``any
report submitted under subsection (c) or (d)'';
(6) in subsection (f), as redesignated by paragraph (3)--
(A) by striking ``The reports submitted under subsections
(c)(1) and (c)(2)'' and inserting ``Each report submitted
under subsection (c)''; and
(B) by striking ``subsection (d)(2)'' and inserting
``subsection (e)(2)''; and
(7) by adding at the end the following new subsection:
``(g) Definitions.--In this section:
``(1) Intelligence community.--The term `intelligence
community' has the meaning given that term in section 3 of
the National Security Act of 1947 (50 U.S.C. 3003).
``(2) United states person.--The term `United States
person' has the meaning given that term in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).''.
SEC. 110. EFFECTIVE DATE.
(a) In General.--The amendments made by sections 101
through 103 shall take effect on the date that is 1 year
after the date of the enactment of this Act.
(b) Review and Certification.--The Director of National
Intelligence shall--
(1) review the implementation of the transition from the
existing procedures for the production of call detail records
under title V of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.), as in effect prior to the
effective date for the amendments made by sections 101
through 103 of this Act, to the new procedures pursuant to
the amendments made by sections 101 through 103 of this Act;
and
(2) not later than 30 days before the effective date
specified in subsection (a), certify to Congress in writing
that--
[[Page S3362]]
(A) the implementation of the transition described in
paragraph (1) is operationally effective to allow the timely
retrieval of foreign intelligence information from recipients
of an order issued under section 501(c)(2)(F) of the Foreign
Intelligence Surveillance Act of 1978, as amended by section
101 of this Act; and
(B) the implementation of the amendments made by section
101 through 103 of this Act--
(i) will not harm the national security of the United
States; and
(ii) will ensure the protection of classified information
and classified intelligence sources and methods related to
such production of call detail records.
(c) Rule of Construction.--Nothing in this Act shall be
construed to alter or eliminate the authority of the
Government to obtain an order under title V of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et
seq.) as in effect prior to the effective date described in
subsection (a) during the period ending on such effective
date.
SEC. 111. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to authorize the
production of the contents (as such term is defined in
section 2510(8) of title 18, United States Code) of any
electronic communication from an electronic communication
service provider (as such term is defined in section
701(b)(4) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881(b)(4))) under title V of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et
seq.).
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
SEC. 201. PROHIBITION ON BULK COLLECTION.
(a) Prohibition.--Section 402(c) (50 U.S.C. 1842(c)) is
amended--
(1) in paragraph (1), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(3) a specific selection term to be used as the basis for
the use of the pen register or trap and trace device.''.
(b) Definition.--Section 401 (50 U.S.C. 1841) is amended by
adding at the end the following new paragraph:
``(4)(A) The term `specific selection term'--
``(i) is a term that specifically identifies a person,
account, address, or personal device, or any other specific
identifier; and
``(ii) is used to limit, to the greatest extent reasonably
practicable, the scope of information sought, consistent with
the purpose for seeking the use of the pen register or trap
and trace device.
``(B) A specific selection term under subparagraph (A) does
not include an identifier that does not limit, to the
greatest extent reasonably practicable, the scope of
information sought, consistent with the purpose for seeking
the use of the pen register or trap and trace device, such as
an identifier that--
``(i) identifies an electronic communication service
provider (as that term is defined in section 701) or a
provider of remote computing service (as that term is defined
in section 2711 of title 18, United States Code), when not
used as part of a specific identifier as described in
subparagraph (A), unless the provider is itself a subject of
an authorized investigation for which the specific selection
term is used as the basis for the use; or
``(ii) identifies a broad geographic region, including the
United States, a city, a county, a State, a zip code, or an
area code, when not used as part of a specific identifier as
described in subparagraph (A).
``(C) For purposes of subparagraph (A), the term `address'
means a physical address or electronic address, such as an
electronic mail address or temporarily assigned network
address (including an Internet protocol address).
``(D) Nothing in this paragraph shall be construed to
preclude the use of multiple terms or identifiers to meet the
requirements of subparagraph (A).''.
SEC. 202. PRIVACY PROCEDURES.
(a) In General.--Section 402 (50 U.S.C. 1842) is amended by
adding at the end the following new subsection:
``(h) Privacy Procedures.--
``(1) In general.--The Attorney General shall ensure that
appropriate policies and procedures are in place to safeguard
nonpublicly available information concerning United States
persons that is collected through the use of a pen register
or trap and trace device installed under this section. Such
policies and procedures shall, to the maximum extent
practicable and consistent with the need to protect national
security, include privacy protections that apply to the
collection, retention, and use of information concerning
United States persons.
``(2) Rule of construction.--Nothing in this subsection
limits the authority of the court established under section
103(a) or of the Attorney General to impose additional
privacy or minimization procedures with regard to the
installation or use of a pen register or trap and trace
device.''.
(b) Emergency Authority.--Section 403 (50 U.S.C. 1843) is
amended by adding at the end the following new subsection:
``(d) Privacy Procedures.--Information collected through
the use of a pen register or trap and trace device installed
under this section shall be subject to the policies and
procedures required under section 402(h).''.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
SEC. 301. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION.
Section 702(i)(3) (50 U.S.C. 1881a(i)(3)) is amended by
adding at the end the following new subparagraph:
``(D) Limitation on use of information.--
``(i) In general.--Except as provided in clause (ii), if
the Court orders a correction of a deficiency in a
certification or procedures under subparagraph (B), no
information obtained or evidence derived pursuant to the part
of the certification or procedures that has been identified
by the Court as deficient concerning any United States person
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
pursuant to such part of such certification or procedures
shall subsequently be used or disclosed in any other manner
by Federal officers or employees without the consent of the
United States person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(ii) Exception.--If the Government corrects any
deficiency identified by the order of the Court under
subparagraph (B), the Court may permit the use or disclosure
of information obtained before the date of the correction
under such minimization procedures as the Court may approve
for purposes of this clause.''.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
SEC. 401. APPOINTMENT OF AMICUS CURIAE.
Section 103 (50 U.S.C. 1803) is amended by adding at the
end the following new subsections:
``(i) Amicus Curiae.--
``(1) Authorization.--A court established under subsection
(a) or (b) is authorized, consistent with the requirement of
subsection (c) and any other statutory requirement that the
court act expeditiously or within a stated time--
``(A) to appoint amicus curiae to--
``(i) assist the court in the consideration of any
application for an order or review that, in the opinion of
the court, presents a novel or significant interpretation of
the law; or
``(ii) provide technical expertise in any instance the
court considers appropriate; or
``(B) upon motion, to permit an individual or organization
leave to file an amicus curiae brief.
``(2) Designation.--The courts established by subsection
(a) and (b) shall each designate 1 or more individuals who
may be appointed to serve as amicus curiae and who are
determined to be eligible for access to classified national
security information necessary to participate in matters
before such courts (if such access is necessary for
participation in the matters for which they may be
appointed). In appointing an amicus curiae pursuant to
paragraph (1), the court may choose from among those so
designated.
``(3) Expertise.--An individual appointed as an amicus
curiae under paragraph (1) may be an individual who possesses
expertise on privacy and civil liberties, intelligence
collection, communications technology, or any other area that
may lend legal or technical expertise to the court.
``(4) Duties.--An amicus curiae appointed under paragraph
(1) to assist with the consideration of a covered matter
shall carry out the duties assigned by the appointing court.
That court may authorize the amicus curiae to review any
application, certification, petition, motion, or other
submission that the court determines is relevant to the
duties assigned by the court.
``(5) Notification.--A court established under subsection
(a) or (b) shall notify the Attorney General of each exercise
of the authority to appoint an amicus curiae under paragraph
(1).
``(6) Assistance.--A court established under subsection (a)
or (b) may request and receive (including on a non-
reimbursable basis) the assistance of the executive branch in
the implementation of this subsection.
``(7) Administration.--A court established under subsection
(a) or (b) may provide for the designation, appointment,
removal, training, or other support of an amicus curiae
appointed under paragraph (1) in a manner that is not
inconsistent with this subsection.
``(j) Review of FISA Court Decisions.--Following issuance
of an order under this Act, a court established under
subsection (a) shall certify for review to the court
established under subsection (b) any question of law that may
affect resolution of the matter in controversy that the court
determines warrants such review because of a need for
uniformity or because consideration by the court established
under subsection (b) would serve the interests of justice.
Upon certification of a question of law under this
subsection, the court established under subsection (b) may
give binding instructions or require the entire record to be
sent up for decision of the entire matter in controversy.
``(k) Review of FISA Court of Review Decisions.--
``(1) Certification.--For purposes of section 1254(2) of
title 28, United States Code, the court of review established
under subsection (b) shall be considered to be a court of
appeals.
``(2) Amicus curiae briefing.--Upon certification of an
application under paragraph (1), the Supreme Court of the
United States
[[Page S3363]]
may appoint an amicus curiae designated under subsection
(i)(3), or any other person, to provide briefing or other
assistance.''.
TITLE V--NATIONAL SECURITY LETTER REFORM
SEC. 501. PROHIBITION ON BULK COLLECTION.
(a) Counterintelligence Access to Telephone Toll and
Transactional Records.--Section 2709(b) of title 18, United
States Code, is amended in the matter preceding paragraph (1)
by striking ``may'' and inserting ``may, using a term that
specifically identifies a person, entity, telephone number,
or account as the basis for a request''.
(b) Access to Financial Records for Certain Intelligence
and Protective Purposes.--Section 1114(a)(2) of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(2)) is
amended by striking the period and inserting ``and a term
that specifically identifies a customer, entity, or account
to be used as the basis for the production and disclosure of
financial records.''.
(c) Disclosures to FBI of Certain Consumer Records for
Counterintelligence Purposes.--Section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u) is amended--
(1) in subsection (a), by striking ``that information,''
and inserting ``that information that includes a term that
specifically identifies a consumer or account to be used as
the basis for the production of that information,'';
(2) in subsection (b), by striking ``written request,'' and
inserting ``written request that includes a term that
specifically identifies a consumer or account to be used as
the basis for the production of that information,''; and
(3) in subsection (c), by inserting ``, which shall include
a term that specifically identifies a consumer or account to
be used as the basis for the production of the information,''
after ``issue an order ex parte''.
(d) Disclosures to Governmental Agencies for
Counterterrorism Purposes of Consumer Reports.--Section
627(a) of the Fair Credit Reporting Act (15 U.S.C. 1681v(a))
is amended by striking ``analysis.'' and inserting ``analysis
and that includes a term that specifically identifies a
consumer or account to be used as the basis for the
production of such information.''.
SEC. 502. LIMITATIONS ON DISCLOSURE OF NATIONAL SECURITY
LETTERS.
(a) Counterintelligence Access to Telephone Toll and
Transactional Records.--Section 2709 of title 18, United
States Code, is amended by striking subsection (c) and
inserting the following new subsection:
``(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 subsection (d) is provided, no wire or electronic
communication service provider that receives a request under
subsection (b), or officer, employee, or agent thereof, shall
disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or
records under this section.
``(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 the absence of a prohibition of
disclosure under this subsection may result in--
``(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 that receives a request under subsection
(b), or officer, employee, or agent thereof, 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) Application.--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 (b) 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 notify the person of the
applicable nondisclosure requirement.
``(D) Identification of disclosure recipients.--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 clause (i) or
(iii) of subparagraph (A) 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.''.
(b) Access to Financial Records for Certain Intelligence
and Protective Purposes.--Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414) is amended--
(1) in subsection (a)(5), by striking subparagraph (D); and
(2) by inserting after subsection (b) the following new
subsection:
``(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 subsection (d) is provided, no financial institution
that receives a request under subsection (a), or officer,
employee, or agent thereof, shall disclose to any person that
the Federal Bureau of Investigation has sought or obtained
access to information or records under subsection (a).
``(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 the absence of a prohibition of
disclosure under this subsection may result in--
``(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 financial institution that receives a
request under subsection (a), or officer, employee, or agent
thereof, 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) Application.--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.
``(D) Identification of disclosure recipients.--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 clause (i) or
(iii) of subparagraph (A) 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.''.
(c) Identity of Financial Institutions and Credit
Reports.--Section 626 of the Fair Credit Reporting Act (15
U.S.C. 1681u) is amended by striking subsection (d) and
inserting the following new subsection:
``(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 subsection (e) is provided, no consumer reporting
agency that receives a request under subsection (a) or (b) or
an order under subsection (c), or officer, employee, or agent
thereof, 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 the absence of a prohibition of
disclosure under this subsection may result in--
``(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 that
receives a request under subsection (a) or (b) or an order
under subsection (c), or officer, employee, or agent thereof,
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) Application.--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
[[Page S3364]]
under subsection (a) or (b) or an order under subsection (c)
is issued 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.
``(D) Identification of disclosure recipients.--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 clause (i) or
(iii) of subparagraph (A) 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.''.
(d) Consumer Reports.--Section 627 of the Fair Credit
Reporting Act (15 U.S.C. 1681v) is amended by striking
subsection (c) and inserting the following new subsection:
``(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 subsection (d) is provided, no consumer reporting
agency that receives a request under subsection (a), or
officer, employee, or agent thereof, shall disclose or
specify in any consumer report, that a government agency
described in subsection (a) has sought or obtained access to
information or records under subsection (a).
``(B) Certification.--The requirements of subparagraph (A)
shall apply if the head of the government agency described in
subsection (a), or a designee, certifies that the absence of
a prohibition of disclosure under this subsection may result
in--
``(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 that
receives a request under subsection (a), or officer,
employee, or agent thereof, 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 described in subsection (a) or a designee.
``(B) Application.--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 under
subsection (a) is issued 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.
``(D) Identification of disclosure recipients.--At the
request of the head of the government agency described in
subsection (a) or a designee, any person making or intending
to make a disclosure under clause (i) or (iii) of
subparagraph (A) shall identify to the head or such designee
the person to whom such disclosure will be made or to whom
such disclosure was made prior to the request.''.
(e) Investigations of Persons With Access to Classified
Information.--Section 802 of the National Security Act of
1947 (50 U.S.C. 3162) is amended by striking subsection (b)
and inserting the following new subsection:
``(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 subsection (c) is provided, no governmental or private
entity that receives a request under subsection (a), or
officer, employee, or agent thereof, shall disclose to any
person that an authorized investigative agency described in
subsection (a) has sought or obtained access to information
under subsection (a).
``(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
the absence of a prohibition of disclosure under this
subsection may result in--
``(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 that
receives a request under subsection (a), or officer,
employee, or agent thereof, 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)
or a designee.
``(B) Application.--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.
``(D) Identification of disclosure recipients.--At the
request of the head of an authorized investigative agency
described in subsection (a), or a designee, any person making
or intending to make a disclosure under clause (i) or (iii)
of subparagraph (A) shall identify to the head of the
authorized investigative agency or such designee the person
to whom such disclosure will be made or to whom such
disclosure was made prior to the request.''.
(f) Termination Procedures.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Attorney General shall adopt
procedures with respect to nondisclosure requirements issued
pursuant to section 2709 of title 18, United States Code,
section 626 or 627 of the Fair Credit Reporting Act (15
U.S.C. 1681u and 1681v), section 1114 of the Right to
Financial Privacy Act (12 U.S.C. 3414), or section 802 of the
National Security Act of 1947 (50 U.S.C. 3162), as amended by
this Act, to require--
(A) the review at appropriate intervals of such a
nondisclosure requirement to assess whether the facts
supporting nondisclosure continue to exist;
(B) the termination of such a nondisclosure requirement if
the facts no longer support nondisclosure; and
(C) appropriate notice to the recipient of the national
security letter, or officer, employee, or agent thereof,
subject to the nondisclosure requirement, and the applicable
court as appropriate, that the nondisclosure requirement has
been terminated.
(2) Reporting.--Upon adopting the procedures required under
paragraph (1), the Attorney General shall submit the
procedures to the Committee on the Judiciary of the Senate
and the Committee on the Judiciary of the House of
Representatives.
(g) Judicial Review.--Section 3511 of title 18, United
States Code, is amended by striking subsection (b) and
inserting the following new subsection:
``(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. 3162),
wishes to have a court review a nondisclosure requirement
imposed in connection with the request or order, the
recipient may notify the Government or file a petition for
judicial review in any court described in subsection (a).
``(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 the
judicial district in which the recipient of the order is
doing business or in the district court of the United States
for any judicial district within which the authorized
investigation that is the basis for the request 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 a petition under subparagraph (A) or 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 or a response to a
petition filed under paragraph (1) 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 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, 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 facts
indicating that the absence of a prohibition of disclosure
under this subsection may 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
[[Page S3365]]
``(D) danger to the life or physical safety of any person.
``(3) Standard.--A district court of the United States
shall issue a nondisclosure order or extension thereof under
this subsection if the court determines that there is reason
to believe that disclosure of the information subject to the
nondisclosure requirement during the applicable time period
may 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.''.
SEC. 503. JUDICIAL REVIEW.
(a) Counterintelligence Access to Telephone Toll and
Transactional Records.--Section 2709 of title 18, United
States Code, is amended--
(1) by redesignating subsections (d), (e), and (f) as
subsections (e), (f), and (g), respectively; and
(2) by inserting after subsection (c) the following new
subsection:
``(d) Judicial Review.--
``(1) In general.--A request under subsection (b) or a
nondisclosure requirement imposed in connection with such
request under subsection (c) shall be subject to judicial
review under section 3511.
``(2) Notice.--A request under subsection (b) shall include
notice of the availability of judicial review described in
paragraph (1).''.
(b) Access to Financial Records for Certain Intelligence
and Protective Purposes.--Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414) is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following new
subsection:
``(d) Judicial Review.--
``(1) In general.--A request under subsection (a) or a
nondisclosure requirement imposed in connection with such
request under subsection (c) shall be subject to judicial
review under section 3511 of title 18, United States Code.
``(2) Notice.--A request under subsection (a) shall include
notice of the availability of judicial review described in
paragraph (1).''.
(c) Identity of Financial Institutions and Credit
Reports.--Section 626 of the Fair Credit Reporting Act (15
U.S.C. 1681u) is amended--
(1) by redesignating subsections (e) through (m) as
subsections (f) through (n), respectively; and
(2) by inserting after subsection (d) the following new
subsection:
``(e) Judicial Review.--
``(1) In general.--A request under subsection (a) or (b) or
an order under subsection (c) or a non-disclosure requirement
imposed in connection with such request under subsection (d)
shall be subject to judicial review under section 3511 of
title 18, United States Code.
``(2) Notice.--A request under subsection (a) or (b) or an
order under subsection (c) shall include notice of the
availability of judicial review described in paragraph
(1).''.
(d) Identity of Financial Institutions and Credit
Reports.--Section 627 of the Fair Credit Reporting Act (15
U.S.C. 1681v) is amended--
(1) by redesignating subsections (d), (e), and (f) as
subsections (e), (f), and (g), respectively; and
(2) by inserting after subsection (c) the following new
subsection:
``(d) Judicial Review.--
``(1) In general.--A request under subsection (a) or a non-
disclosure requirement imposed in connection with such
request under subsection (c) shall be subject to judicial
review under section 3511 of title 18, United States Code.
``(2) Notice.--A request under subsection (a) shall include
notice of the availability of judicial review described in
paragraph (1).''.
(e) Investigations of Persons With Access to Classified
Information.--Section 802 of the National Security Act of
1947 (50 U.S.C. 3162) is amended--
(1) by redesignating subsections (c) through (f) as
subsections (d) through (g), respectively; and
(2) by inserting after subsection (b) the following new
subsection:
``(c) Judicial Review.--
``(1) In general.--A request under subsection (a) or a
nondisclosure requirement imposed in connection with such
request under subsection (b) shall be subject to judicial
review under section 3511 of title 18, United States Code.
``(2) Notice.--A request under subsection (a) shall include
notice of the availability of judicial review described in
paragraph (1).''.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
SEC. 601. ADDITIONAL REPORTING ON ORDERS REQUIRING PRODUCTION
OF BUSINESS RECORDS; BUSINESS RECORDS
COMPLIANCE REPORTS TO CONGRESS.
(a) Reports Submitted to Committees.--Section 502(b) (50
U.S.C. 1862(b)) is amended--
(1) by redesignating paragraphs (1), (2), and (3) as
paragraphs (6), (7), and (8), respectively; and
(2) by inserting before paragraph (6) (as so redesignated)
the following new paragraphs:
``(1) a summary of all compliance reviews conducted by the
Government for the production of tangible things under
section 501;
``(2) the total number of applications described in section
501(b)(2)(B) made for orders approving requests for the
production of tangible things;
``(3) the total number of such orders either granted,
modified, or denied;
``(4) the total number of applications described in section
501(b)(2)(C) made for orders approving requests for the
production of call detail records;
``(5) the total number of such orders either granted,
modified, or denied;''.
(b) Reporting on Certain Types of Production.--Section
502(c)(1) (50 U.S.C. 1862(c)(1)) is amended--
(1) in subparagraph (A), by striking ``and'';
(2) in subparagraph (B), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following new subparagraphs:
``(C) the total number of applications made for orders
approving requests for the production of tangible things
under section 501 in which the specific selection term does
not specifically identify an individual, account, or personal
device;
``(D) the total number of orders described in subparagraph
(C) either granted, modified, or denied; and
``(E) with respect to orders described in subparagraph (D)
that have been granted or modified, whether the court
established under section 103 has directed additional,
particularized minimization procedures beyond those adopted
pursuant to section 501(g).''.
SEC. 602. ANNUAL REPORTS BY THE GOVERNMENT.
(a) In General.--Title VI (50 U.S.C. 1871 et seq.), as
amended by section 402 of this Act, is further amended by
adding at the end the following new section:
``SEC. 603. ANNUAL REPORTS.
``(a) Report by Director of the Administrative Office of
the United States Courts.--
``(1) Report required.--The Director of the Administrative
Office of the United States Courts shall annually submit to
the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives
and the Select Committee on Intelligence and the Committee on
the Judiciary of the Senate, subject to a declassification
review by the Attorney General and the Director of National
Intelligence, a report that includes--
``(A) the number of applications or certifications for
orders submitted under each of sections 105, 304, 402, 501,
702, 703, and 704;
``(B) the number of such orders granted under each of those
sections;
``(C) the number of orders modified under each of those
sections;
``(D) the number of applications or certifications denied
under each of those sections;
``(E) the number of appointments of an individual to serve
as amicus curiae under section 103, including the name of
each individual appointed to serve as amicus curiae; and
``(F) the number of findings issued under section 103(i)
that such appointment is not appropriate and the text of any
such findings.
``(2) Publication.--The Director shall make the report
required under paragraph (1) publicly available on an
Internet Web site, except that the Director shall not make
publicly available on an Internet Web site the findings
described in subparagraph (F) of paragraph (1).
``(b) Mandatory Reporting by Director of National
Intelligence.--Except as provided in subsection (d), the
Director of National Intelligence shall annually make
publicly available on an Internet Web site a report that
identifies, for the preceding 12-month period--
``(1) the total number of orders issued pursuant to titles
I and III and sections 703 and 704 and a good faith estimate
of the number of targets of such orders;
``(2) the total number of orders issued pursuant to section
702 and a good faith estimate of--
``(A) the number of search terms concerning a known United
States person used to retrieve the unminimized contents of
electronic communications or wire communications obtained
through acquisitions authorized under such section, excluding
the number of search terms used to prevent the return of
information concerning a United States person; and
``(B) the number of queries concerning a known United
States person of unminimized noncontents information relating
to electronic communications or wire communications obtained
through acquisitions authorized under such section, excluding
the number of queries containing information used to prevent
the return of information concerning a United States person;
``(3) the total number of orders issued pursuant to title
IV and a good faith estimate of--
``(A) the number of targets of such orders; and
``(B) the number of unique identifiers used to communicate
information collected pursuant to such orders;
``(4) the total number of orders issued pursuant to
applications made under section 501(b)(2)(B) and a good faith
estimate of--
``(A) the number of targets of such orders; and
[[Page S3366]]
``(B) the number of unique identifiers used to communicate
information collected pursuant to such orders;
``(5) the total number of orders issued pursuant to
applications made under section 501(b)(2)(C) and a good faith
estimate of--
``(A) the number of targets of such orders;
``(B) the number of unique identifiers used to communicate
information collected pursuant to such orders; and
``(C) the number of search terms that included information
concerning a United States person that were used to query any
database of call detail records obtained through the use of
such orders; and
``(6) the total number of national security letters issued
and the number of requests for information contained within
such national security letters.
``(c) Timing.--The annual reports required by subsections
(a) and (b) shall be made publicly available during April of
each year and include information relating to the previous
calendar year.
``(d) Exceptions.--
``(1) Statement of numerical range.--If a good faith
estimate required to be reported under subparagraph (B) of
any of paragraphs (3), (4), or (5) of subsection (b) is fewer
than 500, it shall be expressed as a numerical range of
`fewer than 500' and shall not be expressed as an individual
number.
``(2) Nonapplicability to certain information.--
``(A) Federal bureau of investigation.--Paragraphs (2)(A),
(2)(B), and (5)(C) of subsection (b) shall not apply to
information or records held by, or queries conducted by, the
Federal Bureau of Investigation.
``(B) Electronic mail address and telephone numbers.--
Paragraph (3)(B) of subsection (b) shall not apply to orders
resulting in the acquisition of information by the Federal
Bureau of Investigation that does not include electronic mail
addresses or telephone numbers.
``(3) Certification.--
``(A) In general.--If the Director of National Intelligence
concludes that a good faith estimate required to be reported
under subsection (b)(2)(B) cannot be determined accurately
because some but not all of the relevant elements of the
intelligence community are able to provide such good faith
estimate, the Director shall--
``(i) certify that conclusion in writing to the Select
Committee on Intelligence and the Committee on the Judiciary
of the Senate and the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives;
``(ii) report the good faith estimate for those relevant
elements able to provide such good faith estimate;
``(iii) explain when it is reasonably anticipated that such
an estimate will be able to be determined fully and
accurately; and
``(iv) make such certification publicly available on an
Internet Web site.
``(B) Form.--A certification described in subparagraph (A)
shall be prepared in unclassified form, but may contain a
classified annex.
``(C) Timing.--If the Director of National Intelligence
continues to conclude that the good faith estimates described
in this paragraph cannot be determined accurately, the
Director shall annually submit a certification in accordance
with this paragraph.
``(e) Definitions.--In this section:
``(1) Contents.--The term `contents' has the meaning given
that term under section 2510 of title 18, United States Code.
``(2) Electronic communication.--The term `electronic
communication' has the meaning given that term under section
2510 of title 18, United States Code.
``(3) National security letter.--The term `national
security letter' means a request for a report, records, or
other information under--
``(A) section 2709 of title 18, United States Code;
``(B) section 1114(a)(5)(A) of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A));
``(C) subsection (a) or (b) of section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u(a), 1681u(b)); or
``(D) section 627(a) of the Fair Credit Reporting Act (15
U.S.C. 1681v(a)).
``(4) United states person.--The term `United States
person' means a citizen of the United States or an alien
lawfully admitted for permanent residence (as defined in
section 101(a) of the Immigration and Nationality Act (8
U.S.C. 1101(a))).
``(5) Wire communication.--The term `wire communication'
has the meaning given that term under section 2510 of title
18, United States Code.''.
(b) Table of Contents Amendment.--The table of contents, as
amended by section 402 of this Act, is further amended by
inserting after the item relating to section 602, as added by
section 402 of this Act, the following new item:
``Sec. 603. Annual reports.''.
(c) Public Reporting on National Security Letters.--Section
118(c) of the USA PATRIOT Improvement and Reauthorization Act
of 2005 (18 U.S.C. 3511 note) is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by striking
``United States''; and
(B) in subparagraph (A), by striking ``, excluding the
number of requests for subscriber information'';
(2) by redesignating paragraph (2) as paragraph (3); and
(3) by inserting after paragraph (1) the following:
``(2) Content.--
``(A) In general.--Except as provided in subparagraph (B),
each report required under this subsection shall include a
good faith estimate of the total number of requests described
in paragraph (1) requiring disclosure of information
concerning--
``(i) United States persons; and
``(ii) persons who are not United States persons.
``(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 separate the number of requests into each of the
categories described in subparagraph (A).''.
(d) Stored Communications.--Section 2702(d) of title 18,
United States Code, is amended--
(1) in paragraph (1), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (2)(B), by striking the period and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(3) the number of accounts from which the Department of
Justice has received voluntary disclosures under subsection
(c)(4).''.
SEC. 603. PUBLIC REPORTING BY PERSONS SUBJECT TO FISA ORDERS.
(a) In General.--Title VI (50 U.S.C. 1871 et seq.), as
amended by sections 402 and 602 of this Act, is further
amended by adding at the end the following new section:
``SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO ORDERS.
``(a) Reporting.--A person subject to a nondisclosure
requirement accompanying an order or directive under this Act
or a national security letter may, with respect to such
order, directive, or national security letter, publicly
report the following information using one of the following
structures:
``(1) A semiannual report that aggregates the number of
orders, directives, or national security letters with which
the person was required to comply into separate categories
of--
``(A) the number of national security letters received,
reported in bands of 1000 starting with 0-999;
``(B) the number of customer selectors targeted by national
security letters, reported in bands of 1000 starting with 0-
999;
``(C) the number of orders or directives received,
combined, under this Act for contents, reported in bands of
1000 starting with 0-999;
``(D) the number of customer selectors targeted under
orders or directives received, combined, under this Act for
contents reported in bands of 1000 starting with 0-999;
``(E) the number of orders received under this Act for
noncontents, reported in bands of 1000 starting with 0-999;
and
``(F) the number of customer selectors targeted under
orders under this Act for noncontents, reported in bands of
1000 starting with 0-999, pursuant to--
``(i) title IV;
``(ii) title V with respect to applications described in
section 501(b)(2)(B); and
``(iii) title V with respect to applications described in
section 501(b)(2)(C).
``(2) A semiannual report that aggregates the number of
orders, directives, or national security letters with which
the person was required to comply into separate categories
of--
``(A) the number of national security letters received,
reported in bands of 500 starting with 0-499;
``(B) the number of customer selectors targeted by national
security letters, reported in bands of 500 starting with 0-
499;
``(C) the number of orders or directives received,
combined, under this Act for contents, reported in bands of
500 starting with 0-499;
``(D) the number of customer selectors targeted under
orders or directives received, combined, under this Act for
contents, reported in bands of 500 starting with 0-499;
``(E) the number of orders received under this Act for
noncontents, reported in bands of 500 starting with 0-499;
and
``(F) the number of customer selectors targeted under
orders received under this Act for noncontents, reported in
bands of 500 starting with 0-499.
``(3) A semiannual report that aggregates the number of
orders, directives, or national security letters with which
the person was required to comply in the into separate
categories of--
``(A) the total number of all national security process
received, including all national security letters, and orders
or directives under this Act, combined, reported in bands of
250 starting with 0-249; and
``(B) the total number of customer selectors targeted under
all national security process received, including all
national security letters, and orders or directives under
this Act, combined, reported in bands of 250 starting with 0-
249.
``(4) An annual report that aggregates the number of
orders, directives, and national security letters the person
was required to comply with into separate categories of--
``(A) the total number of all national security process
received, including all national security letters, and orders
or directives under this Act, combined, reported in bands of
100 starting with 0-99; and
``(B) the total number of customer selectors targeted under
all national security process received, including all
national security letters, and orders or directives under
[[Page S3367]]
this Act, combined, reported in bands of 100 starting with 0-
99.
``(b) Period of Time Covered by Reports.--
``(1) A report described in paragraph (1) or (2) of
subsection (a) shall include only information--
``(A) relating to national security letters for the
previous 180 days; and
``(B) relating to authorities under this Act for the 180-
day period of time ending on the date that is not less than
180 days prior to the date of the publication of such report,
except that with respect to a platform, product, or service
for which a person did not previously receive an order or
directive (not including an enhancement to or iteration of an
existing publicly available platform, product, or service)
such report shall not include any information relating to
such new order or directive until 540 days after the date on
which such new order or directive is received.
``(2) A report described in paragraph (3) of subsection (a)
shall include only information relating to the previous 180
days.
``(3) A report described in paragraph (4) of subsection (a)
shall include only information for the 1-year period of time
ending on the date that is not less than 1 year prior to the
date of the publication of such report.
``(c) Other Forms of Agreed to Publication.--Nothing in
this section prohibits the Government and any person from
jointly agreeing to the publication of information referred
to in this subsection in a time, form, or manner other than
as described in this section.
``(d) Definitions.--In this section:
``(1) Contents.--The term `contents' has the meaning given
that term under section 2510 of title 18, United States Code.
``(2) National security letter.--The term `national
security letter' has the meaning given that term under
section 603.''.
(b) Table of Contents Amendment.--The table of contents, as
amended by sections 402 and 602 of this Act, is further
amended by inserting after the item relating to section 603,
as added by section 602 of this Act, the following new item:
``Sec. 604. Public reporting by persons subject to orders.''.
SEC. 604. REPORTING REQUIREMENTS FOR DECISIONS, ORDERS, AND
OPINIONS OF THE FOREIGN INTELLIGENCE
SURVEILLANCE COURT AND THE FOREIGN INTELLIGENCE
SURVEILLANCE COURT OF REVIEW.
Section 601(c)(1) (50 U.S.C. 1871(c)(1)) is amended to read
as follows:
``(1) not later than 45 days after the date on which the
Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review issues a decision,
order, or opinion, including any denial or modification of an
application under this Act, that includes significant
construction or interpretation of any provision of law or
results in a change of application of any provision of this
Act or a novel application of any provision of this Act, a
copy of such decision, order, or opinion and any pleadings,
applications, or memoranda of law associated with such
decision, order, or opinion; and''.
SEC. 605. SUBMISSION OF REPORTS UNDER FISA.
(a) Electronic Surveillance.--Section 108(a)(1) (50 U.S.C.
1808(a)(1)) is amended by striking ``the House Permanent
Select Committee on Intelligence and the Senate Select
Committee on Intelligence, and the Committee on the Judiciary
of the Senate,'' and inserting ``the Permanent Select
Committee on Intelligence and the Committee on the Judiciary
of the House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the
Senate''.
(b) Physical Searches.--The matter preceding paragraph (1)
of section 306 (50 U.S.C. 1826) is amended--
(1) in the first sentence, by striking ``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 Senate,'' and inserting
``Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives
and the Select Committee on Intelligence and the Committee on
the Judiciary of the Senate''; and
(2) in the second sentence, by striking ``and the Committee
on the Judiciary of the House of Representatives''.
(c) Pen Registers and Trap and Trace Devices.--Section
406(b) (50 U.S.C. 1846(b)) is amended--
(1) in paragraph (2), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (3), by striking the period and inserting
a semicolon; and
(3) by adding at the end the following new paragraphs:
``(4) each department or agency on behalf of which the
Attorney General or a designated attorney for the Government
has made an application for an order authorizing or approving
the installation and use of a pen register or trap and trace
device under this title; and
``(5) for each department or agency described in paragraph
(4), each number described in paragraphs (1), (2), and
(3).''.
(d) Access to Certain Business Records and Other Tangible
Things.--Section 502(a) (50 U.S.C. 1862(a)) is amended by
striking ``Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the
Senate'' and inserting ``Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives and the Select Committee on Intelligence
and the Committee on the Judiciary of the Senate''.
TITLE VII--ENHANCED NATIONAL SECURITY PROVISIONS
SEC. 701. EMERGENCIES INVOLVING NON-UNITED STATES PERSONS.
(a) In General.--Section 105 (50 U.S.C. 1805) is amended--
(1) by redesignating subsections (f), (g), (h), and (i) as
subsections (g), (h), (i), and (j), respectively; and
(2) by inserting after subsection (e) the following:
``(f)(1) Notwithstanding any other provision of this Act,
the lawfully authorized targeting of a non-United States
person previously believed to be located outside the United
States for the acquisition of foreign intelligence
information may continue for a period not to exceed 72 hours
from the time that the non-United States person is reasonably
believed to be located inside the United States and the
acquisition is subject to this title or to title III of this
Act, provided that the head of an element of the intelligence
community--
``(A) reasonably determines that a lapse in the targeting
of such non-United States person poses a threat of death or
serious bodily harm to any person;
``(B) promptly notifies the Attorney General of a
determination under subparagraph (A); and
``(C) requests, as soon as practicable, the employment of
emergency electronic surveillance under subsection (e) or the
employment of an emergency physical search pursuant to
section 304(e), as warranted.
``(2) The authority under this subsection to continue the
acquisition of foreign intelligence information is limited to
a period not to exceed 72 hours and shall cease upon the
earlier of the following:
``(A) The employment of emergency electronic surveillance
under subsection (e) or the employment of an emergency
physical search pursuant to section 304(e).
``(B) An issuance of a court order under this title or
title III of this Act.
``(C) The Attorney General provides direction that the
acquisition be terminated.
``(D) The head of the element of the intelligence community
conducting the acquisition determines that a request under
paragraph (1)(C) is not warranted.
``(E) When the threat of death or serious bodily harm to
any person is no longer reasonably believed to exist.
``(3) Nonpublicly available information concerning
unconsenting United States persons acquired under this
subsection shall not be disseminated during the 72 hour time
period under paragraph (1) unless necessary to investigate,
reduce, or eliminate the threat of death or serious bodily
harm to any person.
``(4) If the Attorney General declines to authorize the
employment of emergency electronic surveillance under
subsection (e) or the employment of an emergency physical
search pursuant to section 304(e), or a court order is not
obtained under this title or title III of this Act,
information obtained during the 72 hour acquisition time
period under paragraph (1) shall not be retained, except with
the approval of the Attorney General if the information
indicates a threat of death or serious bodily harm to any
person.
``(5) Paragraphs (5) and (6) of subsection (e) shall apply
to this subsection.''.
(b) Notification of Emergency Employment of Electronic
Surveillance.--Section 106(j) (50 U.S.C. 1806(j)) is amended
by striking ``section 105(e)'' and inserting ``subsection (e)
or (f) of section 105''.
(c) Report to Congress.--Section 108(a)(2) (50 U.S.C.
1808(a)(2)) is amended--
(1) in subparagraph (B), by striking ``and'' at the end;
(2) in subparagraph (C), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(D) the total number of authorizations under section
105(f) and the total number of subsequent emergency
employments of electronic surveillance under section 105(e)
or emergency physical searches pursuant to section 301(e).''.
SEC. 702. PRESERVATION OF TREATMENT OF NON-UNITED STATES
PERSONS TRAVELING OUTSIDE THE UNITED STATES AS
AGENTS OF FOREIGN POWERS.
Section 101(b)(1) is amended--
(1) in subparagraph (A), by inserting before the semicolon
at the end the following: ``, irrespective of whether the
person is inside the United States''; and
(2) in subparagraph (B)--
(A) by striking ``of such person's presence in the United
States''; and
(B) by striking ``such activities in the United States''
and inserting ``such activities''.
SEC. 703. IMPROVEMENT TO INVESTIGATIONS OF INTERNATIONAL
PROLIFERATION OF WEAPONS OF MASS DESTRUCTION.
Section 101(b)(1) is further amended by striking
subparagraph (E) and inserting the following new subparagraph
(E):
``(E) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor,
for or on behalf of a foreign power, or knowingly aids or
abets any person in the conduct of such proliferation or
activities in preparation therefor, or knowingly conspires
with any person
[[Page S3368]]
to engage in such proliferation or activities in preparation
therefor; or''.
SEC. 704. INCREASE IN PENALTIES FOR MATERIAL SUPPORT OF
FOREIGN TERRORIST ORGANIZATIONS.
Section 2339B(a)(1) of title 18, United States Code, is
amended by striking ``15 years'' and inserting ``20 years''.
SEC. 705. SUNSETS.
(a) USA PATRIOT Improvement and Reauthorization Act of
2005.--Section 102(b)(1) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (50 U.S.C. 1805 note) is amended
by striking ``June 1, 2015'' and inserting ``December 15,
2019''.
(b) Intelligence Reform and Terrorism Prevention Act of
2004.--Section 6001(b)(1) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 1801 note) is
amended by striking ``June 1, 2015'' and inserting ``December
15, 2019''.
(c) Conforming Amendment.--Section 102(b)(1) of the USA
PATRIOT Improvement and Reauthorization Act of 2005 (50
U.S.C. 1805 note), as amended by subsection (a), is further
amended by striking ``sections 501, 502, and'' and inserting
``title V and section''.
TITLE VIII--SAFETY OF MARITIME NAVIGATION AND NUCLEAR TERRORISM
CONVENTIONS IMPLEMENTATION
Subtitle A--Safety of Maritime Navigation
SEC. 801. AMENDMENT TO SECTION 2280 OF TITLE 18, UNITED
STATES CODE.
Section 2280 of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1)(A)(i), by striking ``a ship flying the
flag of the United States'' and inserting ``a vessel of the
United States or a vessel subject to the jurisdiction of the
United States (as defined in section 70502 of title 46)'';
(B) in paragraph (1)(A)(ii), by inserting ``, including the
territorial seas'' after ``in the United States''; and
(C) in paragraph (1)(A)(iii), by inserting ``, by a United
States corporation or legal entity,'' after ``by a national
of the United States'';
(2) in subsection (c), by striking ``section 2(c)'' and
inserting ``section 13(c)'';
(3) by striking subsection (d);
(4) by striking subsection (e) and inserting after
subsection (c) the following:
``(d) Definitions.--As used in this section, section 2280a,
section 2281, and section 2281a, the term--
``(1) `applicable treaty' means--
``(A) the Convention for the Suppression of Unlawful
Seizure of Aircraft, done at The Hague on 16 December 1970;
``(B) the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, done at Montreal on 23
September 1971;
``(C) the Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including
Diplomatic Agents, adopted by the General Assembly of the
United Nations on 14 December 1973;
``(D) International Convention against the Taking of
Hostages, adopted by the General Assembly of the United
Nations on 17 December 1979;
``(E) the Convention on the Physical Protection of Nuclear
Material, done at Vienna on 26 October 1979;
``(F) the Protocol for the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation,
supplementary to the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, done at
Montreal on 24 February 1988;
``(G) the Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms Located on the
Continental Shelf, done at Rome on 10 March 1988;
``(H) International Convention for the Suppression of
Terrorist Bombings, adopted by the General Assembly of the
United Nations on 15 December 1997; and
``(I) International Convention for the Suppression of the
Financing of Terrorism, adopted by the General Assembly of
the United Nations on 9 December 1999;
``(2) `armed conflict' does not include internal
disturbances and tensions, such as riots, isolated and
sporadic acts of violence, and other acts of a similar
nature;
``(3) `biological weapon' means--
``(A) microbial or other biological agents, or toxins
whatever their origin or method of production, of types and
in quantities that have no justification for prophylactic,
protective, or other peaceful purposes; or
``(B) weapons, equipment, or means of delivery designed to
use such agents or toxins for hostile purposes or in armed
conflict;
``(4) `chemical weapon' means, together or separately--
``(A) toxic chemicals and their precursors, except where
intended for--
``(i) industrial, agricultural, research, medical,
pharmaceutical, or other peaceful purposes;
``(ii) protective purposes, namely those purposes directly
related to protection against toxic chemicals and to
protection against chemical weapons;
``(iii) military purposes not connected with the use of
chemical weapons and not dependent on the use of the toxic
properties of chemicals as a method of warfare; or
``(iv) law enforcement including domestic riot control
purposes,
as long as the types and quantities are consistent with such
purposes;
``(B) munitions and devices, specifically designed to cause
death or other harm through the toxic properties of those
toxic chemicals specified in subparagraph (A), which would be
released as a result of the employment of such munitions and
devices; and
``(C) any equipment specifically designed for use directly
in connection with the employment of munitions and devices
specified in subparagraph (B);
``(5) `covered ship' means a ship that is navigating or is
scheduled to navigate into, through or from waters beyond the
outer limit of the territorial sea of a single country or a
lateral limit of that country's territorial sea with an
adjacent country;
``(6) `explosive material' has the meaning given the term
in section 841(c) and includes explosive as defined in
section 844(j) of this title;
``(7) `infrastructure facility' has the meaning given the
term in section 2332f(e)(5) of this title;
``(8) `international organization' has the meaning given
the term in section 831(f)(3) of this title;
``(9) `military forces of a state' means the armed forces
of a state which are organized, trained, and equipped under
its internal law for the primary purpose of national defense
or security, and persons acting in support of those armed
forces who are under their formal command, control, and
responsibility;
``(10) `national of the United States' has the meaning
stated in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22));
``(11) `Non-Proliferation Treaty' means the Treaty on the
Non-Proliferation of Nuclear Weapons, done at Washington,
London, and Moscow on 1 July 1968;
``(12) `Non-Proliferation Treaty State Party' means any
State Party to the Non-Proliferation Treaty, to include
Taiwan, which shall be considered to have the obligations
under the Non-Proliferation Treaty of a party to that treaty
other than a Nuclear Weapon State Party to the Non-
Proliferation Treaty;
``(13) `Nuclear Weapon State Party to the Non-Proliferation
Treaty' means a State Party to the Non-Proliferation Treaty
that is a nuclear-weapon State, as that term is defined in
Article IX(3) of the Non-Proliferation Treaty;
``(14) `place of public use' has the meaning given the term
in section 2332f(e)(6) of this title;
``(15) `precursor' has the meaning given the term in
section 229F(6)(A) of this title;
``(16) `public transport system' has the meaning given the
term in section 2332f(e)(7) of this title;
``(17) `serious injury or damage' means--
``(A) serious bodily injury,
``(B) extensive destruction of a place of public use, State
or government facility, infrastructure facility, or public
transportation system, resulting in major economic loss, or
``(C) substantial damage to the environment, including air,
soil, water, fauna, or flora;
``(18) `ship' means a vessel of any type whatsoever not
permanently attached to the sea-bed, including dynamically
supported craft, submersibles, or any other floating craft,
but does not include a warship, a ship owned or operated by a
government when being used as a naval auxiliary or for
customs or police purposes, or a ship which has been
withdrawn from navigation or laid up;
``(19) `source material' has the meaning given that term in
the International Atomic Energy Agency Statute, done at New
York on 26 October 1956;
``(20) `special fissionable material' has the meaning given
that term in the International Atomic Energy Agency Statute,
done at New York on 26 October 1956;
``(21) `territorial sea of the United States' means all
waters extending seaward to 12 nautical miles from the
baselines of the United States determined in accordance with
international law;
``(22) `toxic chemical' has the meaning given the term in
section 229F(8)(A) of this title;
``(23) `transport' means to initiate, arrange or exercise
effective control, including decisionmaking authority, over
the movement of a person or item; and
``(24) `United States', when used in a geographical sense,
includes the Commonwealth of Puerto Rico, the Commonwealth of
the Northern Mariana Islands, and all territories and
possessions of the United States.''; and
(5) by inserting after subsection (d) (as added by
paragraph (4) of this section) the following:
``(e) Exceptions.--This section shall not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.
``(f) Delivery of Suspected Offender.--The master of a
covered ship flying the flag of the United States who has
reasonable grounds to believe that there is on board that
ship any person who has committed an offense under section
2280 or section 2280a may deliver such person to the
authorities of a country that is a party to the Convention
for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation. Before delivering such person to the
authorities of another country, the master shall notify in an
appropriate manner the Attorney General of the United States
of the alleged offense and await instructions from the
Attorney
[[Page S3369]]
General as to what action to take. When delivering the person
to a country which is a state party to the Convention, the
master shall, whenever practicable, and if possible before
entering the territorial sea of such country, notify the
authorities of such country of the master's intention to
deliver such person and the reasons therefor. If the master
delivers such person, the master shall furnish to the
authorities of such country the evidence in the master's
possession that pertains to the alleged offense.
``(g)(1) Civil Forfeiture.--Any real or personal property
used or intended to be used to commit or to facilitate the
commission of a violation of this section, the gross proceeds
of such violation, and any real or personal property
traceable to such property or proceeds, shall be subject to
forfeiture.
``(2) Applicable Procedures.--Seizures and forfeitures
under this section shall be governed by the provisions of
chapter 46 of title 18, United States Code, relating to civil
forfeitures, except that such duties as are imposed upon the
Secretary of the Treasury under the customs laws described in
section 981(d) shall be performed by such officers, agents,
and other persons as may be designated for that purpose by
the Secretary of Homeland Security, the Attorney General, or
the Secretary of Defense.''.
SEC. 802. NEW SECTION 2280A OF TITLE 18, UNITED STATES CODE.
(a) In General.--Chapter 111 of title 18, United States
Code, is amended by adding after section 2280 the following
new section:
``Sec. 2280a. Violence against maritime navigation and
maritime transport involving weapons of mass destruction
``(a) Offenses.--
``(1) In general.--Subject to the exceptions in subsection
(c), a person who unlawfully and intentionally--
``(A) when the purpose of the act, by its nature or
context, is to intimidate a population, or to compel a
government or an international organization to do or to
abstain from doing any act--
``(i) uses against or on a ship or discharges from a ship
any explosive or radioactive material, biological, chemical,
or nuclear weapon or other nuclear explosive device in a
manner that causes or is likely to cause death to any person
or serious injury or damage;
``(ii) discharges from a ship oil, liquefied natural gas,
or another hazardous or noxious substance that is not covered
by clause (i), in such quantity or concentration that causes
or is likely to cause death to any person or serious injury
or damage; or
``(iii) uses a ship in a manner that causes death to any
person or serious injury or damage;
``(B) transports on board a ship--
``(i) any explosive or radioactive material, knowing that
it is intended to be used to cause, or in a threat to cause,
death to any person or serious injury or damage for the
purpose of intimidating a population, or compelling a
government or an international organization to do or to
abstain from doing any act;
``(ii) any biological, chemical, or nuclear weapon or other
nuclear explosive device, knowing it to be a biological,
chemical, or nuclear weapon or other nuclear explosive
device;
``(iii) any source material, special fissionable material,
or equipment or material especially designed or prepared for
the processing, use, or production of special fissionable
material, knowing that it is intended to be used in a nuclear
explosive activity or in any other nuclear activity not under
safeguards pursuant to an International Atomic Energy Agency
comprehensive safeguards agreement, except where--
``(I) such item is transported to or from the territory of,
or otherwise under the control of, a Non-Proliferation Treaty
State Party; and
``(II) the resulting transfer or receipt (including
internal to a country) is not contrary to the obligations
under the Non-Proliferation Treaty of the Non-Proliferation
Treaty State Party from which, to the territory of which, or
otherwise under the control of which such item is
transferred;
``(iv) any equipment, materials, or software or related
technology that significantly contributes to the design or
manufacture of a nuclear weapon or other nuclear explosive
device, with the intention that it will be used for such
purpose, except where--
``(I) the country to the territory of which or under the
control of which such item is transferred is a Nuclear Weapon
State Party to the Non-Proliferation Treaty; and
``(II) the resulting transfer or receipt (including
internal to a country) is not contrary to the obligations
under the Non-Proliferation Treaty of a Non-Proliferation
Treaty State Party from which, to the territory of which, or
otherwise under the control of which such item is
transferred;
``(v) any equipment, materials, or software or related
technology that significantly contributes to the delivery of
a nuclear weapon or other nuclear explosive device, with the
intention that it will be used for such purpose, except
where--
``(I) such item is transported to or from the territory of,
or otherwise under the control of, a Non-Proliferation Treaty
State Party; and
``(II) such item is intended for the delivery system of a
nuclear weapon or other nuclear explosive device of a Nuclear
Weapon State Party to the Non-Proliferation Treaty; or
``(vi) any equipment, materials, or software or related
technology that significantly contributes to the design,
manufacture, or delivery of a biological or chemical weapon,
with the intention that it will be used for such purpose;
``(C) transports another person on board a ship knowing
that the person has committed an act that constitutes an
offense under section 2280 or subparagraph (A), (B), (D), or
(E) of this section or an offense set forth in an applicable
treaty, as specified in section 2280(d)(1), and intending to
assist that person to evade criminal prosecution;
``(D) injures or kills any person in connection with the
commission or the attempted commission of any of the offenses
set forth in subparagraphs (A) through (C), or subsection
(a)(2), to the extent that the subsection (a)(2) offense
pertains to subparagraph (A); or
``(E) attempts to do any act prohibited under subparagraph
(A), (B) or (D), or conspires to do any act prohibited by
subparagraphs (A) through (E) or subsection (a)(2),
shall be fined under this title, imprisoned not more than 20
years, or both; and if the death of any person results from
conduct prohibited by this paragraph, shall be imprisoned for
any term of years or for life.
``(2) Threats.--A person who threatens, with apparent
determination and will to carry the threat into execution, to
do any act prohibited under paragraph (1)(A) shall be fined
under this title, imprisoned not more than 5 years, or both.
``(b) Jurisdiction.--There is jurisdiction over the
activity prohibited in subsection (a)--
``(1) in the case of a covered ship, if--
``(A) such activity is committed--
``(i) against or on board a vessel of the United States or
a vessel subject to the jurisdiction of the United States (as
defined in section 70502 of title 46) at the time the
prohibited activity is committed;
``(ii) in the United States, including the territorial
seas; or
``(iii) by a national of the United States, by a United
States corporation or legal entity, or by a stateless person
whose habitual residence is in the United States;
``(B) during the commission of such activity, a national of
the United States is seized, threatened, injured, or killed;
or
``(C) the offender is later found in the United States
after such activity is committed;
``(2) in the case of a ship navigating or scheduled to
navigate solely within the territorial sea or internal waters
of a country other than the United States, if the offender is
later found in the United States after such activity is
committed; or
``(3) in the case of any vessel, if such activity is
committed in an attempt to compel the United States to do or
abstain from doing any act.
``(c) Exceptions.--This section shall not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.
``(d)(1) Civil Forfeiture.--Any real or personal property
used or intended to be used to commit or to facilitate the
commission of a violation of this section, the gross proceeds
of such violation, and any real or personal property
traceable to such property or proceeds, shall be subject to
forfeiture.
``(2) Applicable Procedures.--Seizures and forfeitures
under this section shall be governed by the provisions of
chapter 46 of title 18, United States Code, relating to civil
forfeitures, except that such duties as are imposed upon the
Secretary of the Treasury under the customs laws described in
section 981(d) shall be performed by such officers, agents,
and other persons as may be designated for that purpose by
the Secretary of Homeland Security, the Attorney General, or
the Secretary of Defense.''.
(b) Conforming Amendment.--The table of sections at the
beginning of chapter 111 of title 18, United States Code, is
amended by adding after the item relating to section 2280 the
following new item:
``2280a. Violence against maritime navigation and maritime transport
involving weapons of mass destruction.''.
SEC. 803. AMENDMENTS TO SECTION 2281 OF TITLE 18, UNITED
STATES CODE.
Section 2281 of title 18, United States Code, is amended--
(1) in subsection (c), by striking ``section 2(c)'' and
inserting ``section 13(c)'';
(2) in subsection (d), by striking the definitions of
``national of the United States,'' ``territorial sea of the
United States,'' and ``United States''; and
(3) by inserting after subsection (d) the following:
``(e) Exceptions.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.''.
SEC. 804. NEW SECTION 2281A OF TITLE 18, UNITED STATES CODE.
(a) In General.--Chapter 111 of title 18, United States
Code, is amended by adding after section 2281 the following
new section:
``Sec. 2281a. Additional offenses against maritime fixed
platforms
``(a) Offenses.--
[[Page S3370]]
``(1) In general.--A person who unlawfully and
intentionally--
``(A) when the purpose of the act, by its nature or
context, is to intimidate a population, or to compel a
government or an international organization to do or to
abstain from doing any act--
``(i) uses against or on a fixed platform or discharges
from a fixed platform any explosive or radioactive material,
biological, chemical, or nuclear weapon in a manner that
causes or is likely to cause death or serious injury or
damage; or
``(ii) discharges from a fixed platform oil, liquefied
natural gas, or another hazardous or noxious substance that
is not covered by clause (i), in such quantity or
concentration that causes or is likely to cause death or
serious injury or damage;
``(B) injures or kills any person in connection with the
commission or the attempted commission of any of the offenses
set forth in subparagraph (A); or
``(C) attempts or conspires to do anything prohibited under
subparagraph (A) or (B),
shall be fined under this title, imprisoned not more than 20
years, or both; and if death results to any person from
conduct prohibited by this paragraph, shall be imprisoned for
any term of years or for life.
``(2) Threat to safety.--A person who threatens, with
apparent determination and will to carry the threat into
execution, to do any act prohibited under paragraph (1)(A),
shall be fined under this title, imprisoned not more than 5
years, or both.
``(b) Jurisdiction.--There is jurisdiction over the
activity prohibited in subsection (a) if--
``(1) such activity is committed against or on board a
fixed platform--
``(A) that is located on the continental shelf of the
United States;
``(B) that is located on the continental shelf of another
country, by a national of the United States or by a stateless
person whose habitual residence is in the United States; or
``(C) in an attempt to compel the United States to do or
abstain from doing any act;
``(2) during the commission of such activity against or on
board a fixed platform located on a continental shelf, a
national of the United States is seized, threatened, injured,
or killed; or
``(3) such activity is committed against or on board a
fixed platform located outside the United States and beyond
the continental shelf of the United States and the offender
is later found in the United States.
``(c) Exceptions.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.
``(d) Definitions.--In this section--
``(1) `continental shelf' means the sea-bed and subsoil of
the submarine areas that extend beyond a country's
territorial sea to the limits provided by customary
international law as reflected in Article 76 of the 1982
Convention on the Law of the Sea; and
``(2) `fixed platform' means an artificial island,
installation, or structure permanently attached to the sea-
bed for the purpose of exploration or exploitation of
resources or for other economic purposes.''.
(b) Conforming Amendment.--The table of sections at the
beginning of chapter 111 of title 18, United States Code, is
amended by adding after the item relating to section 2281 the
following new item:
``2281a. Additional offenses against maritime fixed platforms.''.
SEC. 805. ANCILLARY MEASURE.
Section 2332b(g)(5)(B) of title 18, United States Code, is
amended by inserting ``2280a (relating to maritime safety),''
before ``2281'', and by striking ``2281'' and inserting
``2281 through 2281a''.
Subtitle B--Prevention of Nuclear Terrorism
SEC. 811. NEW SECTION 2332I OF TITLE 18, UNITED STATES CODE.
(a) In General.--Chapter 113B of title 18, United States
Code, is amended by adding after section 2332h the following:
``Sec. 2332i. Acts of nuclear terrorism
``(a) Offenses.--
``(1) In general.--Whoever knowingly and unlawfully--
``(A) possesses radioactive material or makes or possesses
a device--
``(i) with the intent to cause death or serious bodily
injury; or
``(ii) with the intent to cause substantial damage to
property or the environment; or
``(B) uses in any way radioactive material or a device, or
uses or damages or interferes with the operation of a nuclear
facility in a manner that causes the release of or increases
the risk of the release of radioactive material, or causes
radioactive contamination or exposure to radiation--
``(i) with the intent to cause death or serious bodily
injury or with the knowledge that such act is likely to cause
death or serious bodily injury;
``(ii) with the intent to cause substantial damage to
property or the environment or with the knowledge that such
act is likely to cause substantial damage to property or the
environment; or
``(iii) with the intent to compel a person, an
international organization or a country to do or refrain from
doing an act,
shall be punished as prescribed in subsection (c).
``(2) Threats.--Whoever, under circumstances in which the
threat may reasonably be believed, threatens to commit an
offense under paragraph (1) shall be punished as prescribed
in subsection (c). Whoever demands possession of or access to
radioactive material, a device or a nuclear facility by
threat or by use of force shall be punished as prescribed in
subsection (c).
``(3) Attempts and conspiracies.--Whoever attempts to
commit an offense under paragraph (1) or conspires to commit
an offense under paragraph (1) or (2) shall be punished as
prescribed in subsection (c).
``(b) Jurisdiction.--Conduct prohibited by subsection (a)
is within the jurisdiction of the United States if--
``(1) the prohibited conduct takes place in the United
States or the special aircraft jurisdiction of the United
States;
``(2) the prohibited conduct takes place outside of the
United States and--
``(A) is committed by a national of the United States, a
United States corporation or legal entity or a stateless
person whose habitual residence is in the United States;
``(B) is committed on board a vessel of the United States
or a vessel subject to the jurisdiction of the United States
(as defined in section 70502 of title 46) or on board an
aircraft that is registered under United States law, at the
time the offense is committed; or
``(C) is committed in an attempt to compel the United
States to do or abstain from doing any act, or constitutes a
threat directed at the United States;
``(3) the prohibited conduct takes place outside of the
United States and a victim or an intended victim is a
national of the United States or a United States corporation
or legal entity, or the offense is committed against any
state or government facility of the United States; or
``(4) a perpetrator of the prohibited conduct is found in
the United States.
``(c) Penalties.--Whoever violates this section shall be
fined not more than $2,000,000 and shall be imprisoned for
any term of years or for life.
``(d) Nonapplicability.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.
``(e) Definitions.--As used in this section, the term--
``(1) `armed conflict' has the meaning given that term in
section 2332f(e)(11) of this title;
``(2) `device' means:
``(A) any nuclear explosive device; or
``(B) any radioactive material dispersal or radiation-
emitting device that may, owing to its radiological
properties, cause death, serious bodily injury or substantial
damage to property or the environment;
``(3) `international organization' has the meaning given
that term in section 831(f)(3) of this title;
``(4) `military forces of a state' means the armed forces
of a country that are organized, trained and equipped under
its internal law for the primary purpose of national defense
or security and persons acting in support of those armed
forces who are under their formal command, control and
responsibility;
``(5) `national of the United States' has the meaning given
that term in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22));
``(6) `nuclear facility' means:
``(A) any nuclear reactor, including reactors on vessels,
vehicles, aircraft or space objects for use as an energy
source in order to propel such vessels, vehicles, aircraft or
space objects or for any other purpose;
``(B) any plant or conveyance being used for the
production, storage, processing or transport of radioactive
material; or
``(C) a facility (including associated buildings and
equipment) in which nuclear material is produced, processed,
used, handled, stored or disposed of, if damage to or
interference with such facility could lead to the release of
significant amounts of radiation or radioactive material;
``(7) `nuclear material' has the meaning given that term in
section 831(f)(1) of this title;
``(8) `radioactive material' means nuclear material and
other radioactive substances that contain nuclides that
undergo spontaneous disintegration (a process accompanied by
emission of one or more types of ionizing radiation, such as
alpha-, beta-, neutron particles and gamma rays) and that
may, owing to their radiological or fissile properties, cause
death, serious bodily injury or substantial damage to
property or to the environment;
``(9) `serious bodily injury' has the meaning given that
term in section 831(f)(4) of this title;
``(10) `state' has the same meaning as that term has under
international law, and includes all political subdivisions
thereof;
``(11) `state or government facility' has the meaning given
that term in section 2332f(e)(3) of this title;
``(12) `United States corporation or legal entity' means
any corporation or other entity organized under the laws of
the United States or any State, Commonwealth, territory,
possession or district of the United States;
``(13) `vessel' has the meaning given that term in section
1502(19) of title 33; and
``(14) `vessel of the United States' has the meaning given
that term in section 70502 of title 46.''.
[[Page S3371]]
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 113B of title 18, United States Code, is
amended by inserting after the item relating to section 2332h
the following:
``2332i. Acts of nuclear terrorism.''.
(c) Disclaimer.--Nothing contained in this section is
intended to affect the applicability of any other Federal or
State law that might pertain to the underlying conduct.
(d) Inclusion in Definition of Federal Crimes of
Terrorism.--Section 2332b(g)(5)(B) of title 18, United States
Code, is amended by inserting ``2332i (relating to acts of
nuclear terrorism),'' before ``2339 (relating to harboring
terrorists)''.
SEC. 812. AMENDMENT TO SECTION 831 OF TITLE 18, UNITED STATES
CODE.
Section 831 of title 18, United States Code, is amended--
(a) in subsection (a)--
(1) by redesignating paragraphs (3) through (8) as
paragraphs (4) through (9);
(2) by inserting after paragraph (2) the following:
``(3) without lawful authority, intentionally carries,
sends or moves nuclear material into or out of a country;'';
(3) in paragraph (8), as redesignated, by striking ``an
offense under paragraph (1), (2), (3), or (4)'' and inserting
``any act prohibited under paragraphs (1) through (5)''; and
(4) in paragraph (9), as redesignated, by striking ``an
offense under paragraph (1), (2), (3), or (4)'' and inserting
``any act prohibited under paragraphs (1) through (7)'';
(b) in subsection (b)--
(1) in paragraph (1), by striking ``(7)'' and inserting
``(8)''; and
(2) in paragraph (2), by striking ``(8)'' and inserting
``(9)'';
(c) in subsection (c)--
(1) in subparagraph (2)(A), by adding after ``United
States'' the following: ``or a stateless person whose
habitual residence is in the United States'';
(2) by striking paragraph (5);
(3) in paragraph (4), by striking ``or'' at the end; and
(4) by inserting after paragraph (4), the following:
``(5) the offense is committed on board a vessel of the
United States or a vessel subject to the jurisdiction of the
United States (as defined in section 70502 of title 46) or on
board an aircraft that is registered under United States law,
at the time the offense is committed;
``(6) the offense is committed outside the United States
and against any state or government facility of the United
States; or
``(7) the offense is committed in an attempt to compel the
United States to do or abstain from doing any act, or
constitutes a threat directed at the United States.'';
(d) by redesignating subsections (d) through (f) as (e)
through (g), respectively;
(e) by inserting after subsection (c) the following:
``(d) Nonapplicability.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law; or
``(2) activities undertaken by military forces of a state
in the exercise of their official duties.''; and
(f) in subsection (g), as redesignated--
(1) in paragraph (6), by striking ``and'' at the end;
(2) in paragraph (7), by striking the period at the end and
inserting a semicolon; and
(3) by inserting after paragraph (7), the following:
``(8) the term `armed conflict' has the meaning given that
term in section 2332f(e)(11) of this title;
``(9) the term `military forces of a state' means the armed
forces of a country that are organized, trained and equipped
under its internal law for the primary purpose of national
defense or security and persons acting in support of those
armed forces who are under their formal command, control and
responsibility;
``(10) the term `state' has the same meaning as that term
has under international law, and includes all political
subdivisions thereof;
``(11) the term `state or government facility' has the
meaning given that term in section 2332f(e)(3) of this title;
and
``(12) the term `vessel of the United States' has the
meaning given that term in section 70502 of title 46.''.
______
SA 1453. Mr. McConnell proposed an amendment to amendment SA 1452
proposed by Mr. McConnell (for himself and Mr. Burr) to the bill H.R.
2048, to reform the authorities of the Federal Government to require
the production of certain business records, conduct electronic
surveillance, use pen registers and trap and trace devices, and use
other forms of information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other purposes; as
follows:
At the end of the amendment, add the following:
``This Act shall take effect 1 day after the date of
enactment.''
____________________
