[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4591 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 4591

 To restore civil liberties under the First Amendment, the Immigration 
  and Nationality Act, and the Foreign Intelligence Surveillance Act.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 16, 2004

  Mr. Berman (for himself and Mr. Delahunt) introduced the following 
  bill; which was referred to the Committee on the Judiciary, and in 
 addition to the Select Committee on Intelligence (Permanent Select), 
for a period to be subsequently determined by the Speaker, in each case 
for consideration of such provisions as fall within the jurisdiction of 
                        the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To restore civil liberties under the First Amendment, the Immigration 
  and Nationality Act, and the Foreign Intelligence Surveillance Act.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

     This Act may be cited as the ``Civil Liberties Restoration Act of 
2004''.

SEC. 2. FINDINGS.

     Congress finds the following:
            (1) Fighting terrorism is a priority for our Nation.
            (2) As Federal, State, and local law enforcement work 
        tirelessly every day to prevent another terrorist attack, our 
        Nation must continue to work to ensure that law enforcement 
        have the legal tools and resources to do their job.
            (3) At the same time, steps that are taken to protect the 
        United States from terrorism should not undermine 
        constitutional rights and protections.
            (4) Some of the steps taken by the Administration since 
        September 11, 2001, however, have undermined constitutional 
        rights and protections.
            (5) Our nation must strive for both freedom and security.
            (6) This Act seeks to restore essential rights and 
        protections without compromising our Nation's safety.

               TITLE I--RESTORING FIRST AMENDMENT RIGHTS

SEC. 101. LIMITATION ON CLOSED IMMIGRATION HEARINGS.

    (a) In General.--Section 240 of the Immigration and Nationality Act 
(8 U.S.C. 1229a) is amended--
            (1) by redesignating subsection (e) as subsection (f); and
            (2) by inserting after subsection (d) the following new 
        subsection:
    ``(e) Standards for Closing Removal Hearings.--
            ``(1) In general.--Subject to paragraph (2), a removal 
        proceeding held pursuant to this section shall be open to the 
        public.
            ``(2) Exceptions.--Portions of a removal proceeding held 
        pursuant to this section may be closed to the public by an 
        immigration judge on a case by case basis, when necessary--
                    ``(A) to preserve the confidentiality of 
                applications for asylum, withholding of removal, relief 
                under the Convention Against Torture and Other Cruel, 
                Inhuman or Degrading Treatment or Punishment, the 
                Violence Against Women Act of 1994 (Public Law 103-322; 
                108 Stat. 1902), or the Victims of Trafficking and 
                Violence Prevention Act of 2000 (Public Law 106-386; 
                114 Stat. 1464), or other applications for relief 
                involving confidential personal information or where 
                portions of the removal hearing involve minors or 
                issues relating to domestic violence, all with the 
                consent of the alien;
                    ``(B) to prevent the disclosure of classified 
                information that threatens the national security of the 
                United States and the safety of the American people; or
                    ``(C) to prevent the disclosure of the identity of 
                a confidential informant.
            ``(3) Compelling government interest.--In order for 
        portions of removal proceedings to be closed to the public in 
        accordance with this subsection, the government must show that 
        such closing of the proceedings is necessitated by a compelling 
        governmental interest and is narrowly tailored to serve that 
        interest.''.
    (b) Technical and Conforming Amendments.--Section 240(b) of the 
Immigration and Nationality Act (8 U.S.C. 1229a(b)) is amended--
            (1) in paragraph (5)(C)(i), by striking ``subsection 
        (e)(1)'' and inserting ``subsection (f)(1)''; and
            (2) in paragraph (7), by striking ``subsection (e)(1)'' and 
        inserting ``subsection (f)(1)''.

            TITLE II--PROVIDING DUE PROCESS FOR INDIVIDUALS

SEC. 201. TIMELY SERVICE OF NOTICE.

    (a) In General.--Section 236 of the Immigration and Nationality Act 
(8 U.S.C. 1226) is amended by adding at the end the following:
    ``(f) Notice of Charges.--The Secretary of Homeland Security shall 
serve a notice to appear on every alien arrested or detained under this 
Act, except those certified under section 236A(a)(3), within 48 hours 
of the arrest or detention of such alien. Any alien, except those 
certified under section 236A(a)(3), held for more than 48 hours shall 
be brought before an immigration judge within 72 hours of the arrest or 
detention of such alien. The Secretary of Homeland Security shall--
            ``(1) document when a notice to appear is served on a 
        detainee in order to determine compliance by the Department of 
        Homeland Security with the 48-hour notice requirement; and
            ``(2) submit to the Committees on the Judiciary of the 
        Senate and the House of Representatives an annual report 
        concerning the Department of Homeland Security's compliance 
        with such notice requirement.''.
    (b) Applicability of Other Law.--Nothing in section 236(f) of the 
Immigration and Nationality Act, as added by subsection (a), shall be 
construed to repeal section 236A of such Act (8 U.S.C. 1226a).

SEC. 202. INDIVIDUALIZED BOND DETERMINATIONS.

    (a) In General.--Section 236(a) of the Immigration and Nationality 
Act (8 U.S.C. 1226(a)) is amended--
            (1) by striking ``On a warrant'' and inserting the 
        following:
            ``(1) In general.--On a warrant'';
            (2) by striking ``Except as provided'' and all that follows 
        through the end and inserting the following: ``This subsection 
        shall apply to all aliens detained pending a decision on their 
        removal or admission, regardless of whether or not they have 
        been admitted to the United States, including any alien found 
        to have a credible fear of persecution under section 
        235(b)(1)(B) or any alien admitted or seeking admission under 
        the visa waiver program pursuant to section 217. Except as 
        provided in subsection (c) and pending such decision, the 
        Secretary of Homeland Security shall--
                    ``(A) make an individualized determination as to 
                whether the alien should be released pending 
                administrative and judicial review, to include a 
                determination of whether the alien poses a danger to 
                the safety of other persons or property and is likely 
                to appear for future scheduled proceedings; and
                    ``(B) grant the alien release pending 
                administrative and judicial review under reasonable 
                bond or other conditions, including conditional parole, 
                that will reasonably assure the presence of the alien 
                at all future proceedings, unless the Secretary of 
                Homeland Security determines under subparagraph (A) 
                that the alien poses a danger to the safety of other 
                persons or property or is unlikely to appear for future 
                proceedings.
            ``(2) Individualized determinations.--An individualized 
        determination made by the Secretary of Homeland Security 
        pursuant to paragraph (1)(A) shall be reviewable at a hearing 
        held before an immigration judge pursuant to section 240. An 
        immigration judge who reviews an initial bond determination by 
        the Secretary of Homeland Security, or who makes a bond 
        determination prior to a decision by the Secretary of Homeland 
        Security, shall apply the same standards set forth in 
        subparagraphs (A) and (B) of paragraph (1).''.
    (b) Revocation of Bond or Parole.--Section 236(b) of the 
Immigration and Nationality Act (8 U.S.C. 1226(b)) is amended by 
striking ``The Attorney General'' and all that follows through the 
period and inserting the following: ``The bond or parole determination 
made pursuant to subsection (a)(1)(B) may be revoked or modified only 
by an immigration judge in proceedings held pursuant to section 240, 
and only if the party seeking to revoke or modify the bond or parole 
determination can establish a change in circumstances. The 
administrative decision finding the alien removable does not, in and of 
itself, constitute a change in circumstances. At such a hearing, if 
changed circumstances are established, the immigration judge shall make 
a new individualized determination in the manner described in 
subsection (a).''.
    (c) Technical and Conforming Amendments.--Section 236 of the 
Immigration and Nationality Act (8 U.S.C. 1226) is amended--
            (1) by striking ``Attorney General'' each place that term 
        appears and inserting ``Secretary of Homeland Security''; and
            (2) in subsection (e), by striking ``Attorney General's'' 
        and inserting ``Secretary of Homeland Security's''.

SEC. 203. LIMITATION ON STAY OF A BOND.

     Section 236 of the Immigration and Nationality Act (8 U.S.C. 
1226), as amended by section 201, is further amended by adding at the 
end the following:
    ``(g) Stay of a Bond Determination.--An order issued by an 
immigration judge to release an alien may be stayed by the Board of 
Immigration Review, for not more than 30 days, only if the Government 
demonstrates--
            ``(1) the likelihood of success on the merits;
            ``(2) irreparable harm to the Government if a stay is not 
        granted;
            ``(3) that the potential harm to the Government outweighs 
        potential harm to alien; and
            ``(4) that the grant of a stay is in the interest of the 
        public.''.

SEC. 204. IMMIGRATION REVIEW COMMISSION.

    (a) Establishment of Commission.--
            (1) In general.--There is established within the Department 
        of Justice an independent regulatory agency to be known as the 
        Immigration Review Commission (referred to in this section as 
        the ``Commission''). The Executive Office of Immigration Review 
        is hereby abolished and replaced with such Commission.
            (2) Transfer of authority.--The Commission shall perform 
        all administrative, appellate, and adjudicatory functions that 
        were, prior to the date of enactment of this Act, the functions 
        of the Executive Office of Immigration Review or were performed 
        by any officer or employee of the Executive Office of 
        Immigration Review in the capacity of such officer or employee. 
        Such functions shall not include the policy-making, policy-
        implementation, investigatory, or prosecutorial functions of 
        the Department of Homeland Security.
            (3) Organization.--The Commission shall consist of:
                    (A) The Office of the Director.
                    (B) The Board of Immigration Review.
                    (C) The Office of the Chief Immigration Judge.
                    (D) The Office of the Chief Administrative Hearing 
                Officer.
    (b) Office of the Director.--
            (1) Appointment.--There shall be as the head of the 
        Commission, a Director who shall be appointed by the President 
        with the advice and consent of the Senate.
            (2) Transfer of offices.--The following officers shall be 
        transferred from the Executive Office for Immigration Review to 
        the Office of the Director for the Commission:
                    (A) Deputy Director.
                    (B) General Counsel.
                    (C) Pro Bono Coordinator.
                    (D) Public Affairs.
                    (E) Assistant Director of Management Programs.
                    (F) Equal Employment Opportunity.
            (3) Responsibilities.--
                    (A) The Director shall oversee the administration 
                of the Commission, and the creation of rules and 
                regulations affecting the administration of the courts.
                    (B) The Director shall appoint a Deputy Director to 
                assist with the duties of the Director and shall have 
                the power to appoint such administrative assistants, 
                attorneys, clerks, and other personnel as may be 
                needed.
    (c) Board of Immigration Review.--
            (1) In general.--The Board of Immigration Review (referred 
        to in this section as the ``Board'') shall perform the 
        appellate functions of the Commission.
            (2) Appointment.--The Board shall be composed of a 
        Chairperson and not less than 14 other immigration appeals 
        judges, appointed by the President, in consultation with the 
        Director. The term of office of each member of the Board shall 
        be 6 years.
            (3) Current members.--Each individual who is serving as a 
        member of the Board on the date of enactment of this Act shall 
        be appointed to the Board utilizing a system of staggered terms 
        of appointment based on seniority.
            (4) Members.--The Chairperson and each other member of the 
        Board shall be an attorney in good standing of a bar of a State 
        or the District of Columbia and shall have at least 7 years of 
        professional, legal expertise in immigration and nationality 
        law.
            (5) Chairperson duties.--The Chairperson shall--
                    (A) be responsible, on behalf of the Board, for the 
                administrative operations of the Board and shall have 
                the power to appoint such administrative assistants, 
                attorneys, clerks, and other personnel as may be needed 
                for that purpose;
                    (B) direct, supervise, and establish internal 
                operating procedures and policies of the Board; and
                    (C) designate a member of the Board to act as 
                Chairperson in the Chairperson's absence or 
                unavailability.
            (6) Board members duties.--In deciding the cases before the 
        Board, the Board shall exercise its independent judgment and 
        discretion and may take any action, consistent with its 
        authorities under this section and regulations established in 
        accordance with this section, that is appropriate and necessary 
        for the disposition of such cases.
            (7) Jurisdiction.--The Board shall have--
                    (A) such jurisdiction as was, prior to the date of 
                enactment of this Act, provided by statute or 
                regulation to the Board of Immigration Appeals;
                    (B) de novo review of any decision by an 
                immigration judge, and any final order of removal; and
                    (C) retention of jurisdiction over any case of an 
                alien removed by the United States if the alien's case 
                was pending for consideration before the Board prior to 
                removal of the alien.
            (8) Acting in panels.--
                    (A) In general.--All cases shall be subject to 
                review by a 3 member panel. The Chairperson shall 
                divide the Board into 3 member panels and designate a 
                presiding member of each panel such that--
                            (i) a majority of the number of Board 
                        members authorized to constitute a panel shall 
                        constitute a quorum for such panel; and
                            (ii) each panel may exercise the 
                        appropriate authority of the Board that is 
                        necessary for the adjudication of cases before 
                        it.
                    (B) Final decision.--A final decision of a panel 
                shall be considered to be a final decision of the 
                Board.
            (9) En banc process.--
                    (A) In general.--The Board may on its own motion, 
                by a majority vote of the Board members, or by 
                direction of the Chairperson, consider any case as the 
                full Board en banc, or reconsider as the full Board en 
                banc any case that has been considered or decided by a 
                3-member panel or by a limited en banc panel.
                    (B) Quorum.--A majority of the Board members shall 
                constitute a quorum of the Board sitting en banc.
            (10) Decisions of the board.--
                    (A) In general.--The decisions of the Board shall 
                constitute final agency action. The precedent decisions 
                of the Board shall be binding on the Department of 
                Homeland Security and the immigration judges.
                    (B) Affirmance without opinion.--Upon 
                individualized review of a case, the Board may affirm 
                the decision of an immigration judge without opinion 
                only if the decision of the immigration judge resolved 
                all issues in the case. An affirmance without opinion 
                signifies the Board's adoption of the immigration 
                judge's findings and conclusion in total.
                    (C) Notice of appeal.--The decision by the Board 
                shall include notice to the alien of the alien's right 
                to file a petition for review in the court of appeals 
                within 30 days of the date of the decision.
    (d) Office of the Chief Immigration Judge.--
            (1) Establishment of office.--There is established within 
        the Commission an Office of the Chief Immigration Judge to 
        oversee all the immigration courts and their proceedings 
        throughout the United States. The head of the office shall be 
        the Chief Immigration Judge who shall be appointed by the 
        Director.
            (2) Duties of the chief immigration judge.--The Chief 
        Immigration Judge shall be responsible for the general 
        supervision, direction, and procurement of resources and 
        facilities, and for the coordination of the schedules of 
        immigration judges to enable the judges to conduct the various 
        programs assigned to them. The Chief Immigration Judge may be 
        assisted by a Deputy Chief Immigration Judge and Assistant 
        Chief Immigration Judge.
            (3) Appointment of immigration judges.--
                    (A) In general.--Immigration judges shall be 
                appointed by the Director, in consultation with the 
                Chief Immigration Judge and the Chair of the Board of 
                Immigration Review. The term of each immigration judge 
                shall be 12 years.
                    (B) Qualifications.--Each immigration judge, 
                including the Chief Immigration Judge, shall be an 
                attorney in good standing of a bar of a State or the 
                District of Columbia and shall have at least 7 years of 
                professional, legal expertise in immigration and 
                nationality law.
                    (C) Current members.--Each individual who is 
                serving as an immigration judge on the date of 
                enactment of this Act shall be appointed as an 
                immigration judge utilizing a system of staggered terms 
                of appointment based on seniority.
            (4) Duties of immigration judges.--In deciding the cases 
        before them, immigration judges shall exercise their 
        independent judgment and discretion and may take any action, 
        consistent with their authorities under this section and 
        regulations established in accordance with this section, that 
        is appropriate and necessary for the disposition of such cases.
            (5) Jurisdiction and authority of immigration courts.--The 
        Immigration Courts shall have such jurisdiction as was, prior 
        to the date of enactment of this Act, provided by statute or 
        regulation to the Immigration Courts within the Executive 
        Office for Immigration Review.
            (6) Contempt authority.--The contempt authority provided to 
        immigration judges under section 240(b)(1) of the Immigration 
        and Nationality Act (8 U.S.C. 1229a(b)(1)) shall--
                    (A) be implemented by regulation not later than 120 
                days after the date of enactment of this Act;
                    (B) provide that any contempt sanctions, including 
                any civil money penalty, shall be applicable to all 
                parties appearing before the immigration judge and 
                shall be imposed by a single process applicable to all 
                parties.
    (e) Office of the Chief Administrative Hearing Officer.--
            (1) In general.--The Office of the Chief Administrative 
        Hearing Officer shall be headed by a Chief Administrative 
        Hearing Officer who shall be appointed by the Director.
            (2) Duties and responsibilities.--The duties and 
        responsibilities of the current Office of the Chief 
        Administrative Hearing Officer shall be transferred to the 
        Commission.
    (f) Removal and Review of Judges.--
            (1) In general.--Immigration judges and members of the 
        Board of Immigration Review may be removed from office only for 
        good cause--
                    (A) by the Director, in consultation with the Chair 
                of the Board, in the case of the removal of a member of 
                the Board; or
                    (B) by the Director, in consultation with the Chief 
                Immigration Judge, in the case of the removal of an 
                immigration judge.
            (2) Independent judgment.--No immigration judge or member 
        of the Board shall be removed or otherwise subject to 
        disciplinary or adverse action for their exercise of 
        independent judgment and discretion as prescribed by 
        subsections (c)(6) and (d)(4).
    (g) Regulations.--Not later than 180 days after the date of 
enactment of this Act, the Director shall issue regulations to 
implement this section.

                  TITLE III--EFFECTIVE LAW ENFORCEMENT

SEC. 301. TERMINATION OF THE NSEERS PROGRAM; ESTABLISHMENT OF 
              REASONABLE PENALTIES FOR FAILURE TO REGISTER.

    (a) Termination of NSEERS.--
            (1) In general.--The National Security Entry-Exit 
        Registration System (NSEERS) program administered by the 
        Secretary of Homeland Security is hereby terminated.
            (2) Integrated entry and exit data system.--Nothing in this 
        section shall amend the Integrated Entry and Exit Data System 
        established in accordance with section 110 of the Illegal 
        Immigration Reform and Immigrant Responsibility Act of 1996 (8 
        U.S.C. 1365a).
            (3) Administrative closure of removal proceedings.--
                    (A) In general.--All removal proceedings initiated 
                against any alien as a result of the NSEERS program 
                shall be administratively closed. This paragraph shall 
                apply to all aliens who were--
                            (i) placed in removal proceedings solely 
                        for failure to comply with the requirements of 
                        the NSEERS program; or
                            (ii) placed in removal proceedings while 
                        complying with the requirements of the NSEERS 
                        program and--
                                    (I) had a pending application 
                                before the Department of Labor or the 
                                Department of Homeland Security for 
                                which there is a visa available;
                                    (II) did not have a pending 
                                application before the Department of 
                                Labor or the Department of Homeland 
                                Security for which there is a visa 
                                available but were eligible for an 
                                immigration benefit; or
                                    (III) were eligible to apply for 
                                other forms of relief from removal.
                    (B) Exceptions.--This paragraph shall not apply in 
                cases in which the aliens are removable under--
                            (i) section 212(a)(3) of the Immigration 
                        and Nationality Act (8 U.S.C. 1182(a)(3)); or
                            (ii) paragraph (2) or (4) of section 237(a) 
                        of that Act (8 U.S.C. 1227(a)(2) or (4)).
            (4) Motions to reopen.--Notwithstanding any limitations 
        imposed by law on motions to reopen removal proceedings, any 
        alien who received a final order of removal as a result of the 
        NSEERS program shall be eligible to file a motion to reopen the 
        removal proceeding and apply for any relief from removal that 
        such alien may be eligible to receive.

SEC. 302. EXERCISE OF PROSECUTORIAL DISCRETION.

    (a) Sense of Congress Regarding Prosecutorial Discretion.--
            (1) Findings.--Congress finds the following:
                    (A) Exercising prosecutorial discretion is not an 
                invitation to violate or ignore the law, rather it is a 
                means by which the resources of the Secretary of 
                Homeland Security may be used to best accomplish the 
                mission of the Department of Homeland Security in 
                administering and enforcing the immigration laws of the 
                United States.
                    (B) Although a favorable exercise of discretion by 
                any office within the Department of Homeland Security 
                should be respected by other offices of such 
                Department, unless the facts and circumstances in a 
                specific case have changed, the exercise of 
                prosecutorial discretion does not grant lawful status 
                under the immigration laws, and there is no legally 
                enforceable right to the exercise of prosecutorial 
                discretion.
            (2) Sense of congress.--It is the sense of Congress that 
        the exercise of prosecutorial discretion does not lessen the 
        commitment of the Secretary of Homeland Security to enforce the 
        immigration laws to the best of the Secretary's ability.
    (b) Prosecutorial Discretion.--The Secretary of Homeland Security 
shall exercise prosecutorial discretion in deciding whether to exercise 
its enforcement powers against an alien. This discretion includes--
            (1) focusing investigative resources on particular offenses 
        or conduct;
            (2) deciding whom to stop, question, and arrest;
            (3) deciding whether to detain certain aliens who are in 
        custody;
            (4) settling or dismissing a removal proceeding;
            (5) granting deferred action or staying a final removal 
        order;
            (6) agreeing to voluntary departure, permitting withdrawal 
        of an application for admission, or taking other action in lieu 
        of removing an alien;
            (7) pursuing an appeal; or
            (8) executing a removal order.
    (c) Factors for Consideration.--The factors that shall be taken 
into account in deciding whether to exercise prosecutorial discretion 
favorably toward an alien include--
            (1) the immigration status of the alien;
            (2) the length of residence in the United States of the 
        alien;
            (3) the criminal history of the alien;
            (4) humanitarian concerns;
            (5) the immigration history of the alien;
            (6) the likelihood of ultimately removing the alien;
            (7) the likelihood of achieving the enforcement goal by 
        other means;
            (8) whether the alien is eligible or is likely to become 
        eligible for other relief;
            (9) the effect of such action on the future admissibility 
        of the alien;
            (10) current or past cooperation by the alien with law 
        enforcement authorities;
            (11) honorable service by the alien in the United States 
        military;
            (12) community attention; and
            (13) resources available to the Department of Homeland 
        Security.

SEC. 303. CIVIL PENALTIES FOR TECHNICAL VIOLATIONS OF REGISTRATION 
              REQUIREMENTS.

    (a) Registration Penalties.--Section 266(a) of the Immigration and 
Nationality Act (8 U.S.C. 1306(a)) is amended by striking ``Any alien'' 
and all that follows through the period and inserting the following: 
``(1) A civil penalty shall be imposed, in accordance with paragraph 
(2), on any alien who is required to apply for registration and be 
fingerprinted under section 262 or 263, who willfully fails or refuses 
to make such application or be fingerprinted, and any parent or legal 
guardian required to apply for the registration of any alien who 
willfully fails or refuses to file application for the registration of 
such alien as required by such section.
            ``(2) The Secretary of Homeland Security may levy a civil 
        monetary penalty of up to--
                    ``(A) $100 for a first violation of section 262 or 
                263;
                    ``(B) $500 for a second violation of section 262 or 
                263; and
                    ``(C) $1,000 for each subsequent violation of 
                section 262 or 263 after the second violation.''.
    (b) Other Penalties.--Section 266(b) of the Immigration and 
Nationality Act (8 U.S.C. 1306(b)) is amended to read as follows:
    ``(b)(1) A penalty shall be imposed, in accordance with paragraph 
(2), on any alien or the parent or legal guardian in the United States 
of any alien who fails to submit written notice to the Secretary of 
Homeland Security as required by section 265. No penalty shall be 
imposed with respect to a failure to submit such notice if the alien 
establishes that such failure was reasonably excusable or was not 
willful.
    ``(2) Except as provided in paragraphs (4) and (5), the Secretary 
of Homeland Security shall levy a civil monetary penalty of--
                    ``(A) up to $100 against an alien who fails to 
                submit written notice in compliance with section 265;
                    ``(B) up to $500 against an alien for a second 
                violation of section 265; and
                    ``(C) up to $1,000 for each subsequent violation of 
                section 265 after the second violation.
    ``(3) Notwithstanding any other provision of this Act, no change of 
immigration status shall result from failure to submit written notice 
as required by section 265.
    ``(4) During the transition period, a failure to comply with 
section 265 shall not result in a penalty or a change in immigration 
status. At the conclusion of the transition period, the Secretary of 
Homeland Security shall collect and maintain statistics concerning all 
enforcement actions related to this subsection.
    ``(5) The penalties imposed under this subsection shall not apply 
to an alien who previously failed to submit a change of address prior 
to the date of enactment of the Civil Liberties Restoration Act of 2004 
or the end of the transition period if the alien submits a change of 
address within 6 months after the end of the transition period. A 
penalty shall be imposed, in accordance with paragraph (2), on any 
alien who fails to submit a change of address within the 6-month period 
following the transition period.
    ``(6) In this subsection, the term `transition period' means the 
period beginning on the date of enactment of the Civil Liberties 
Restoration Act of 2004 and ending 1 year after the date of enactment 
of such Act, at which time the Secretary of Homeland Security shall 
implement a system to record and preserve on a timely basis addresses 
provided under section 265.''.

SEC. 304. NCIC COMPLIANCE WITH THE PRIVACY ACT.

     Data entered into the National Crime Information Center database 
must meet the accuracy requirements of section 552a of title 5, United 
States Code (commonly referred to as the ``Privacy Act'').

 TITLE IV--PROTECTING PRIVACY AND ENSURING DUE PROCESS FOR TARGETS OF 
                              SURVEILLANCE

SEC. 401. MODIFICATION OF AUTHORITIES ON REVIEW OF MOTIONS TO DISCOVER 
              MATERIALS UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
              1978.

    (a) Electronic Surveillance.--Section 106(f) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(f)) is amended--
            (1) in the first sentence, by striking ``shall,'' and 
        inserting ``may,''; and
            (2) by striking the last sentence and inserting the 
        following new sentence: ``In making this determination, the 
        court shall disclose, if otherwise discoverable, to the 
        aggrieved person, the counsel of the aggrieved person, or both, 
        under the procedures and standards provided in the Classified 
        Information Procedures Act (18 U.S.C. App.), portions of the 
        application, order, or other materials relating to the 
        surveillance unless the court finds that such disclosure would 
        not assist in determining any legal or factual issue pertinent 
        to the case.''.
    (b) Physical Searches.--Section 305(g) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1825(g)) is amended--
            (1) in the first sentence, by striking ``shall,'' and 
        inserting ``may,''; and
            (2) by striking the last sentence and inserting the 
        following new sentence: ``In making this determination, the 
        court shall disclose, if otherwise discoverable, to the 
        aggrieved person, the counsel of the aggrieved person, or both, 
        under the procedures and standards provided in the Classified 
        Information Procedures Act (18 U.S.C. App.), portions of the 
        application, order, or other materials relating to the physical 
        search, or may require the Attorney General to provide to the 
        aggrieved person, the counsel of the aggrieved person, or both 
        a summary of such materials unless the court finds that such 
        disclosure would not assist in determining any legal or factual 
        issue pertinent to the case.''.
    (c) Pen Registers and Trap and Trace Devices.--Section 405(f) of 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(f)) 
is amended by striking paragraph (2) and inserting the following:
            ``(2) Unless the court finds that such disclosure would not 
        assist in determining any legal or factual issue pertinent to 
        the case, the court shall disclose, if otherwise discoverable, 
        to the aggrieved person, the counsel of the aggrieved person, 
        or both, under the procedures and standards provided in the 
        Classified Information Procedures Act (18 U.S.C. App.), 
        portions of the application, order, or other materials relating 
        to the use of the pen register or trap and trace device, as the 
        case may be, or evidence or information obtained or derived 
        from the use of a pen register or trap and trace device, as the 
        case may be.''.
    (d) Disclosure of Certain Business Records.--(1) Title V of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) 
is amended--
                    (A) by redesignating section 502 as section 503; 
                and
                    (B) by inserting after section 501 the following 
                new section:

  ``disclosure of certain business records and items governed by the 
                 classified information procedures act

    ``Sec. 502. Any disclosure of applications, information, or items 
submitted or acquired pursuant to an order issued under section 501, if 
such information is otherwise discoverable, shall be conducted under 
the procedures and standards provided in the Classified Information 
Procedures Act (18 U.S.C. App.).''.
            (2) The table of sections for that Act is amended--
                    (A) by redesignating the item relating to section 
                502 as an item relating to section 503; and
                    (B) inserting after the item relating to section 
                501 the following new item:

``502. Disclosure of certain business records and items governed by the 
                            Classified Information Procedures Act.''.

SEC. 402. DATA-MINING REPORT.

    (a) Definitions.--In this section:
            (1) Data-mining.--The term ``data-mining'' means a query or 
        search or other analysis of 1 or more electronic databases, 
        where--
                    (A) at least 1 of the databases was obtained from 
                or remains under the control of a non-Federal entity, 
                or the information was acquired initially by another 
                department or agency of the Federal Government for 
                purposes other than intelligence or law enforcement;
                    (B) the search does not use a specific individual's 
                personal identifiers to acquire information concerning 
                that individual; and
                    (C) a department or agency of the Federal 
                Government is conducting the query or search or other 
                analysis to find a pattern indicating terrorist or 
                other criminal activity.
            (2) Database.--The term ``database'' does not include 
        telephone directories, information publicly available via the 
        Internet or available by any other means to any member of the 
        public without payment of a fee, or databases of judicial and 
        administrative opinions.
    (b) Reports on Data-Mining Activities.--
            (1) Requirement for report.--The head of each department or 
        agency of the Federal Government that is engaged in any 
        activity to use or develop data-mining technology shall each 
        submit a public report to Congress on all such activities of 
        the department or agency under the jurisdiction of that 
        official.
            (2) Content of report.--A report submitted under paragraph 
        (1) shall include, for each activity to use or develop data-
        mining technology that is required to be covered by the report, 
        the following information:
                    (A) A thorough description of the data-mining 
                technology and the data that will be used.
                    (B) A thorough discussion of the plans for the use 
                of such technology and the target dates for the 
                deployment of the data-mining technology.
                    (C) An assessment of the likely efficacy of the 
                data-mining technology in providing accurate and 
                valuable information consistent with the stated plans 
                for the use of the technology.
                    (D) An assessment of the likely impact of the 
                implementation of the data-mining technology on privacy 
                and civil liberties.
                    (E) A list and analysis of the laws and regulations 
                that govern the information to be collected, reviewed, 
                gathered, and analyzed with the data-mining technology 
                and a description of any modifications of such laws 
                that will be required to use the information in the 
                manner proposed under such program.
                    (F) A thorough discussion of the policies, 
                procedures, and guidelines that are to be developed and 
                applied in the use of such technology for data-mining 
                in order to--
                            (i) protect the privacy and due process 
                        rights of individuals; and
                            (ii) ensure that only accurate information 
                        is collected and used.
                    (G) A thorough discussion of the procedures 
                allowing individuals whose personal information will be 
                used in the data-mining technology to be informed of 
                the use of their personal information and what 
                procedures are in place to allow for individuals to opt 
                out of the technology. If no such procedures are in 
                place, a thorough explanation as to why not.
                    (H) Any necessary classified information in an 
                annex that shall be available to the Committee on 
                Governmental Affairs, the Committee on the Judiciary, 
                and the Committee on Appropriations of the Senate and 
                the Committee on Homeland Security, the Committee on 
                the Judiciary, and the Committee on Appropriations of 
                the House of Representatives.
            (3) Time for report.--Each report required under paragraph 
        (1) shall be--
                    (A) submitted not later than 90 days after the date 
                of enactment of this Act; and
                    (B) updated once a year and include any new data-
                mining technologies.

SEC. 403. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO LIBRARY, 
              BOOKSELLER, AND OTHER PERSONAL RECORDS UNDER FOREIGN 
              INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Applications for Orders.--Subsection (b) of section 501 of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is 
amended--
            (1) in paragraph (1), by striking ``and'' at the end;
            (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) shall specify that there are specific and articulable 
        facts giving reason to believe that the person to whom the 
        records pertain is a foreign power or an agent of a foreign 
        power.''.
    (b) Orders.--Subsection (c)(1) of that section is amended by 
striking ``finds'' and all that follows and inserting ``finds that--
                    ``(A) there are specific and articulable facts 
                giving reason to believe that the person to whom the 
                records pertain is a foreign power or an agent of a 
                foreign power; and
                    ``(B) the application meets the other requirements 
                of this section.''.
    (c) Oversight of Requests for Production of Records.--Section 502 
of that Act (50 U.S.C. 1862) is amended--
            (1) in subsection (a), by striking ``the Permanent'' and 
        all that follows through ``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''; and
            (2) in subsection (b), by striking ``On a semi-annual 
        basis,'' and all that follows through ``a report setting 
        forth'' and inserting ``The report of the Attorney General to 
        the Committees on the Judiciary of the House of Representatives 
        and the Senate under subsection (a) shall set forth''.
                                 <all>