II 109th CONGRESS 1st Session S. 1680 IN THE SENATE OF THE UNITED STATES September 12, 2005 Mr. Cornyn introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To reform the issuance of national security letters.

1.

Short title

This Act may be cited as the National Security Letter Reform Act of 2005.

2.

Judicial review of National Security Letters

(a)

In General

Chapter 223 of title 18, United States Code, is amended by inserting after section 3510 the following:

3511.

Judicial review of requests for information

(a)

Petition by recipient

(1)

In general

The recipient of a request for records, a report, or other information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947 may, in the United States district court for the district in which that person or entity does business or resides, petition for an order modifying or setting aside the request. (2)

Court action

The court may modify or set aside a request under this section if compliance would be unreasonable or oppressive. (b)

Modifications of nondisclosure requirement

(1)

Petitions

The recipient of a request for records, a report, or other information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, may petition any court described in subsection (a) for an order modifying or setting aside a nondisclosure requirement imposed in connection with such a request. (2)

Within 1 year

(A)

In general

If the petition under paragraph (1) is filed not later than 1 year after the request for records, a report, or other information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, the court may modify or set aside such a nondisclosure requirement if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation interfere with diplomatic relations, or endanger the life or physical safety of any person. (B)

Effect of certification

The certification made at the time of the request that disclosure may endanger the national security of the United States or interfere with diplomatic relations shall be treated as conclusive under this paragraph unless the court finds that the certification was made in bad faith. (3)

After 1 year

(A)

In general

If the petition is filed 1 year or more after the request for records, a report, or other information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, the issuing officer, within 90 days of the filing of the petition, shall either terminate the nondisclosure requirement or recertify that disclosure may result in danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person. (B)

Recertification

In the event of recertification under this paragraph, the court may modify or set aside such a nondisclosure requirement if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person. (C)

Conclusive

The recertification that disclosure may endanger the national security of the United States or interfere with diplomatic relations under this paragraph shall be treated as conclusive unless the court finds that the recertification was made in bad faith. (D)

Effect of denial

If the court denies a petition for an order modifying or setting aside a nondisclosure requirement under this paragraph, the recipient shall be precluded for a period of 1 year from filing another petition to modify or set aside such nondisclosure requirement. (c)

Compliance

(1)

Effect of failure

In the case of a failure to comply with a request for records, a report, or other information made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, the Attorney General may invoke the aid of any court of the United States within the jurisdiction in which the investigation is carried on or the person or entity resides, carries on business, or may be found, to compel compliance with the request. (2)

Order

The court under paragraph (1) may issue an order requiring the person or entity to comply with the request. (3)

Contempt

Any failure to obey the order of the court under this subsection may be punished by the court as contempt thereof. (d)

Process

Any process under this section may be served in any judicial district in which the person or entity may be found. (e)

Proceedings

(1)

Closed hearing

In all proceedings under this section, subject to any right to an open hearing in a contempt proceeding, the court shall close any hearing to the extent necessary to prevent an unauthorized disclosure of a request for records, a report, or other information made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947. (2)

Under seal

Petitions, filings, records, orders, and subpoenas in proceedings under this section shall be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a request for records, a report, or other information made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947. (f)

Review of Government Submission

In all proceedings under this section, the court shall, upon the Federal Government's request, review the submission of the Government, which may include classified information, ex parte and in camera.

. (b)

Chapter analysis

The chapter analysis for chapter 223 of title 18, United States Code is amended by inserting at the end the following: 3511. Judicial review of request for information. .

3.

Confidentiality of National Security Letters

(a)

Title 18

Section 2709(c) of title 18, United States Code, is amended to read: (c)

Prohibition of certain disclosure

(1)

In general

If the Director of the Federal Bureau of Investigation, or his designee in a position now lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary in order to comply with the request or an attorney to obtain legal advice with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section. (2)

Notice

A request under this section shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1). (3)

Disclosure

Any recipient of a request under this section disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice with respect to the request shall inform such persons of any applicable nondisclosure requirements. Any person who receives such a disclosure under this subsection shall be subject to the same prohibitions on disclosure as under paragraph (1). . (b)

Confidentiality of disclosures to FBI

Section 626(d) of the Fair Credit Reporting Act (15 U.S.C. 1681u(d)), as so designated by section 214(a)(1) of the Fair and Accurate Credit Transactions Act of 2003 (Public Law 108–159, 117 Stat. 1980), is amended to read as follows: (c)

Confidentiality

(1)

In general

If the Director of the Federal Bureau of Investigation, or the designee thereof in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no consumer reporting agency, or officer, employee, or agent of a consumer reporting agency— (A)shall disclose to any person (other than those to whom such disclosure is necessary in order to comply with the request or an attorney to obtain legal advice with respect to the request), that the Federal Bureau of Investigation has sought or obtained the identity of financial institutions or a consumer report respecting any consumer under subsection (a), (b), or (c); and (B)shall include in any consumer report any information that would indicate that the Federal Bureau of Investigation has sought or obtained such information on a consumer report. (2)

Notice

A request under this section shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1). (3)

Prohibitions applicable to further disclosures

Any recipient of a request under this section disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice with respect to the request shall inform such persons of any applicable nondisclosure requirements. Any person who receives such a disclosure under this subsection shall be subject to the same prohibitions on disclosure as under paragraph (1). . (c)

Confidentiality of disclosures to other government agencies

Section 627(c) of the Fair Credit Reporting Act (15 U.S.C. 1681v(c), as so designated by section 214(a)(1) of the Fair and Accurate Credit Transactions Act of 2003 (Public Law 108–159, 117 Stat. 1980), is amended to read as follows: (c)

Confidentiality

(1)

In general

If the head of a government agency authorized to conduct investigations or intelligence or counterintelligence activities or analysis related to international terrorism, or the designee thereof, certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no consumer reporting agency, or officer, employee, or agent of a consumer reporting agency, shall disclose to any person (other than those to whom such disclosure is necessary in order to comply with the request or an attorney to obtain legal advice with respect to the request), or specify in any consumer report, that a government agency has sought or obtained access to information under subsection (a). (2)

Notice

A request under this section shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1). (3)

Prohibitions applicable to further disclosures

Any recipient disclosing to those persons necessary to comply with a request or to an attorney to obtain legal advice with respect to the request shall inform such persons of any applicable nondisclosure requirements. Any person who receives such a disclosure under this subsection shall be subject to the same prohibitions on disclosure as under paragraph (1). . (d)

Right to financial privacy act

Section 1114(a)(5)(D) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)(D)) is amended to read as follows: (D)

Prohibition of certain disclosure

(i)If the Director of the Federal Bureau of Investigation, or the designee thereof in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, financial institution, or officer, employee, or agent of such institution, shall disclose to any person (other than those to whom such disclosure is necessary in order to comply with the request or an attorney to obtain legal advice with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to a customer's or entity's financial records under this paragraph. (ii)A request under this subsection shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1). (iii)Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice with respect to the request shall inform such persons of any applicable nondisclosure requirement. Any person who receives such a disclosure under this subsection shall be subject to the same prohibitions on disclosure as under clause (i). . (e)

NSA

Section 802(b) of the National Security Act of 1947 (50 U.S.C. 436(b)) is amended to read as follows: (b)

Prohibition of certain disclosure

(1)

In general

If an authorized investigative agency described in subsection (a) certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no governmental or private entity, or officer, employee, or agent of such entity, may disclose to any person (other than those to whom such disclosure is necessary in order to comply with the request or an attorney to obtain legal advice with respect to the request) that such entity has received or satisfied a request made by an authorized investigative agency under this section. (2)

Notice

The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1). (3)

Disclosure

Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice with respect to the request shall inform such persons of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1). .

4.

Violation of Nondisclosure Provisions of National Security Letter

Section 1510 of title 18, United States Code, is amended by adding at the end the following: (e)

Penalty

Whoever knowingly violates section 2709(c)(1) of this title, sections 626(d) or 627(c) of the Fair Credit Reporting Act (15 U.S.C. 1681u(d) or 1681v(c)), section 1114(a)(3) or 1114(a)(5)(D) of the Right to Financial Privacy Act (U.S.C. 3414(a)(3) or 3414(a)(5)(D)), or section 802(b), of the National Security Act of 1947 (50 U.S.C. 436(a)(5)(D)), or section 802(b) of the National Security Act of 1947 (50 U.S.C. 436(b)) shall be imprisoned for not more than 1 year, and if the violation is committed with the intent to obstruct an investigation or judicial proceeding, shall be imprisoned for not more than 5 years. .