1.
This Act may be cited as the
Security and Freedom Enhancement Act
of 2005
or the
SAFE Act
.
2.
Limitations on roving wiretaps under Foreign Intelligence
Surveillance Act of 1978
Section 105(c) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)) is
amended—
(1)
in paragraph (1), by striking
subparagraphs (A) and (B) and inserting the following:
(A)
(i)
the identity of the target
of the electronic surveillance, if known; or
(ii)
if the identity of the
target is not known, a description of the target and the nature and location of
the facilities and places at which the electronic surveillance will be
directed;
(B)
(i)
the nature and location of
each of the facilities or places at which the electronic surveillance will be
directed, if known; or
(ii)
if any of the facilities or
places are not known, the identity of the target;
; and
(2)
in paragraph (2)—
(A)
by redesignating
subparagraphs (B) through (D) as subparagraphs (C) through (E), respectively;
and
(B)
by inserting after
subparagraph (A) the following:
(B)
in cases where the facility
or place at which the surveillance will be directed is not known at the time
the order is issued, that the electronic surveillance be conducted only when
the presence of the target at a particular facility or place is ascertained by
the person conducting the surveillance;
.
3.
Limitations on delayed notice search warrants
(a)
Section 3103a(b) of title 18,
United States Code, is amended—
(1)
in paragraph (1), by striking
may have an adverse result (as defined in section 2705);
and
inserting
will—
(A)
endanger the life or
physical safety of an individual;
(B)
result in flight from
prosecution;
(C)
result in the destruction
of or tampering with evidence; or
(D)
result in intimidation of
potential witnesses;
;
and
(2)
in paragraph (3), by striking
within a reasonable period
and all that follows and
inserting
not later than 7 days after the execution of
the warrant, which period may be extended by the court for an additional period
of not more than 21 days each time the court finds reasonable cause to believe,
pursuant to a request by the Attorney General, the Deputy Attorney General, or
the Associate Attorney General, that notice of the execution of the warrant
will—
(A)
endanger the life or
physical safety of an individual;
(B)
result in flight from
prosecution;
(C)
result in the destruction
of, or tampering with, the evidence sought under the warrant; or
(D)
result in intimidation of
potential witnesses.
.
(b)
Section 3103a of title 18,
United States Code, is amended by adding at the end the following:
(c)
(1)
Every 6 months, the
Attorney General shall submit a report to Congress summarizing, with respect to
warrants under subsection (b), the requests made by the Department of Justice
to delay notice and extend a delay of notice during the previous 6-month
period.
(2)
Each report submitted under
paragraph (1) shall include, for the preceding 6-month period—
(A)
the number of requests to
delay notice with respect to warrants under subsection (b), categorized as
granted, denied, or pending;
(B)
for each request to delay
notice that was granted, the number of requests to extend the delay of notice,
categorized as granted, denied, or pending; and
(C)
on an aggregate basis, the
nature of the crime being investigated for each request to delay notice that
was granted or denied.
(3)
The Attorney General shall
make the report submitted under paragraph (1) available to the public.
.
4.
Privacy protections for library, bookseller, and other personal
records under Foreign Intelligence Surveillance Act of 1978
(a)
Section 501(b)(2) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(b)(2)) is
amended—
(1)
by striking shall
specify that the records
and inserting
shall specify
that—
(A)
the records
;
(2)
by striking the period at the
end and inserting the following: ; and
; and
(3)
by inserting at the end the
following:
(B)
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)
Section 501(c) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(c)) is
amended—
(1)
in paragraph (1), by striking
finds that
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.
;
and
(2)
by adding at the end the
following:
(3)
An order under this
subsection shall not—
(A)
contain any requirement
which would be held to be unreasonable if contained in a subpoena duces tecum
issued by a court of the United States in aid of a grand jury investigation of
espionage or international terrorism; or
(B)
require the production of
any documentary evidence which would be privileged from disclosure if demanded
by a subpoena duces tecum issued by a court of the United States in aid of a
grand jury investigation of espionage or international terrorism.
(4)
An order under this
subsection must provide notice of the recipient’s right to file a petition
under subsection (f) and explain the procedures for doing so.
.
(c)
Section 501(d) of Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(d)) is amended to read as
follows:
(d)
(1)
No person who receives an
order under subsection (c) shall disclose to any person that the Federal Bureau
of Investigation has sought or obtained tangible things under this section for
180 days after receipt of such order.
(2)
A person who receives an
order under subsection (c) may disclose that the Federal Bureau of
Investigation has sought or obtained tangible things under this section
to—
(A)
those persons to whom
disclosure is necessary in order to comply with an order under this section;
or
(B)
an attorney in order to
obtain legal advice regarding such order.
(3)
The Director of the Federal
Bureau of Investigation, or a designee of the Director (whose rank shall be no
lower than Assistant Special Agent in Charge), may apply for an order
prohibiting disclosure that the Federal Bureau of Investigation has sought or
obtained access to tangible things under this section for an additional 180
days.
(4)
An application for an order
pursuant to this subsection shall be made to—
(A)
a judge of the court
established under section 103(a); or
(B)
a United States Magistrate
Judge under chapter 43 of title 28, who is publicly designated by the Chief
Justice of the United States to have the power to hear applications and grant
orders for the production of tangible things under this section on behalf of a
judge of the court established under section 103(a).
(5)
An application for an order
pursuant to this subsection must state specific and articulable facts giving
the applicant reason to believe that disclosure that the Federal Bureau of
Investigation has sought or obtained tangible things under this section will
result in—
(A)
endangering the life or
physical safety of any person;
(B)
flight from
prosecution;
(C)
destruction of or tampering
with evidence;
(D)
intimidation of potential
witnesses; or
(E)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(6)
The judge may issue an ex
parte order pursuant to this subsection if the judge determines there is reason
to believe that disclosure that the Federal Bureau of Investigation has sought
or obtained access to tangible things under this section will result in—
(A)
endangering the life or
physical safety of any person;
(B)
flight from
prosecution;
(C)
destruction of or tampering
with evidence;
(D)
intimidation of potential
witnesses; or
(E)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(7)
An order under this
subsection may be renewed for additional periods of up to 180 days upon another
application meeting the requirements of paragraph (5) and a determination by
the court that the circumstances described in paragraph (6) continue to
exist.
.
(d)
Section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended by adding at
the end the following:
(f)
(1)
Not later than 20 days
after the service upon any person of an order pursuant to subsection (c), or at
any time before the return date specified in the order, whichever period is
shorter, such person may file, in the court established under section 103(a) or
in the district court of the United States for the judicial district within
which such person resides, is found, or transacts business, a petition for such
court to modify or set aside such order. The time allowed for compliance with
the order in whole or in part as deemed proper and ordered by the court shall
not run during the pendency of such petition in the court. Such petition shall
specify each ground upon which the petitioner relies in seeking relief, and may
be based upon any failure of such order to comply with the provisions of this
section or upon any constitutional or other legal right or privilege of such
person.
(2)
(A)
A person prohibited from
disclosing information under subsection (d) may file, in the courts established
by section 103(a) or in the district court of the United States for the
judicial district within which such person resides, is found, or transacts
business, a petition for such court to set aside the nondisclosure requirement.
Such petition shall specify each ground upon which the petitioner relies in
seeking relief, and may be based upon any failure of the nondisclosure
requirement to comply with the provisions of this section or upon any
constitutional or other legal right or privilege of such person.
(B)
The court shall set aside
the nondisclosure requirement unless the court determines that there is reason
to believe that disclosure of the order under subsection (c) will result
in—
(i)
endangering the life or
physical safety of any person;
(ii)
flight from
prosecution;
(iii)
destruction of or tampering
with evidence;
(iv)
intimidation of potential
witnesses; or
(v)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(3)
(A)
Not later than 180 days
after the date of enactment of the Security
and Freedom Enhancement Act of 2005, the courts established
pursuant to section 103(a) shall establish such rules and procedures and take
such actions as are reasonably necessary to administer their responsibilities
under this subsection.
(B)
Not later than 30 days
after promulgating rules and procedures under subparagraph (A), the courts
established pursuant to section 103(a) shall transmit a copy of the rules and
procedures, unclassified to the greatest extent possible (with a classified
annex, if necessary), 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.
(4)
Disclosures to petitioners
In making determinations
under this subsection, the court shall disclose to the petitioner, the counsel
of the petitioner, 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 related materials unless the court finds that such
disclosure would not assist in determining any legal or factual issue pertinent
to the case.
.
(e)
Section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861), as amended by
subsection (d), is amended by adding at the end the following:
(g)
(1)
(A)
Any tangible things or
information acquired from an order pursuant to this section concerning any
United States person may be used and disclosed by Federal officers and
employees without the consent of the United States person only in accordance
with the provisions of this subsection.
(B)
No tangible things or
information acquired from an order pursuant to this section may be used or
disclosed by Federal officers or employees except for lawful purposes.
(2)
Disclosure for law enforcement purposes
No tangible things or
information acquired pursuant to this section shall be disclosed for law
enforcement purposes unless such disclosure is accompanied by a statement that
such tangible things or information, or any information derived therefrom, may
only be used in a criminal proceeding with the advance authorization of the
Attorney General.
(3)
Notification of intended disclosure by the united
states
Whenever the United States
intends to enter into evidence or otherwise use or disclose in any trial,
hearing, or other proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United States against an
aggrieved person any tangible things or information obtained or derived from an
order pursuant to this section, the United States shall, before the trial,
hearing, or other proceeding or at a reasonable time before an effort to so
disclose or so use the tangible things or information or submit them in
evidence, notify the aggrieved person and the court or other authority in which
the tangible things or information are to be disclosed or used that the United
States intends to so disclose or so use such tangible things or
information.
(4)
Notification of intended disclosure by state or political
subdivision
Whenever any State or
political subdivision thereof intends to enter into evidence or otherwise use
or disclose in any trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other authority of the State
or political subdivision thereof against an aggrieved person any tangible
things or information obtained or derived from an order pursuant to this
section, the State or political subdivision thereof shall notify the aggrieved
person, the court or other authority in which the tangible things or
information are to be disclosed or used, and the Attorney General that the
State or political subdivision thereof intends to so disclose or so use such
tangible things or information.
(5)
(A)
Any aggrieved person
against whom evidence obtained or derived from an order pursuant to this
section 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, or a
State or political subdivision thereof, may move to suppress the evidence
obtained or derived from the order, as the case may be, on the grounds
that—
(i)
the tangible things or
information were acquired in violation of the Constitution or laws of the
United States; or
(ii)
the order was not in
conformity with the requirements of this section.
(B)
A motion under subparagraph
(A) shall be made before the trial, hearing, or other proceeding unless there
was no opportunity to make such a motion or the aggrieved person concerned was
not aware of the grounds of the motion.
(6)
(A)
Whenever—
(i)
a court or other authority
is notified pursuant to paragraph (3) or (4);
(ii)
a motion is made pursuant
to paragraph (5); or
(iii)
any motion or request is
made by an aggrieved person pursuant to any other statute or rule of the United
States or any State before any court or other authority of the United States or
any State to—
(I)
discover or obtain
applications, orders, or other materials relating to an order issued pursuant
to this section; or
(II)
discover, obtain, or
suppress evidence or information obtained or derived from an order issued
pursuant to this section;
the United States district court
or, where the motion is made before another authority, the United States
district court in the same district as the authority shall, notwithstanding any
other provision of law and if the Attorney General files an affidavit under
oath that disclosure would harm the national security of the United States,
review in camera the application, order, and such other related materials as
may be necessary to determine whether the order was lawfully authorized and
served.
(B)
In making a determination
under subparagraph (A), 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 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 related materials, or evidence or information obtained or
derived from the order.
(7)
Effect of determination of lawfulness
(A)
If the United States
district court determines pursuant to paragraph (6) that the order was not
authorized or served in compliance with the Constitution or laws of the United
States, the court may, in accordance with the requirements of law, suppress the
evidence which was unlawfully obtained or derived from the order or otherwise
grant the motion of the aggrieved person.
(B)
If the court determines
that the order was lawfully authorized and served, it may deny the motion of
the aggrieved person except to the extent that due process requires discovery
or disclosure.
(8)
Orders granting motions or
requests under paragraph (6), decisions under this section that an order was
not lawfully authorized or served, and orders of the United States district
court requiring review or granting disclosure of applications, orders, or other
related materials shall be final orders and binding upon all courts of the
United States and the several States except a United States court of appeals or
the Supreme Court.
.
(f)
Oversight of requests for production of records
Section 502(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1862(a)) is amended to
read as follows:
(a)
On a semiannual basis, the
Attorney General shall, with respect to all requests for the production of
tangible things under section 501, fully inform—
(1)
the Select Committee on
Intelligence of the Senate;
(2)
the Committee on the
Judiciary of the Senate;
(3)
the Permanent Select
Committee on Intelligence of the House of Representatives; and
(4)
the Committee on the
Judiciary of the House of Representatives.
.
(g)
Title V of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended
by adding at the end the following:
503.
In this title, the following
definitions apply:
(1)
Except as provided in this
section, terms used in this title that are also used in title I shall have the
meanings given such terms by section 101.
(2)
The term aggrieved
person means any person whose tangible things or information were
acquired pursuant to an order under this title.
.
5.
Procedural protections for national security letters
(a)
(1)
Section 2709(b) of title 18,
United States Code, is amended—
(A)
in paragraph (1), by
inserting and there are specific and articulable facts giving reason to
believe that the name, address, length of service, and toll billing records
sought pertain to a foreign power or agent of a foreign power
after
clandestine intelligence activities
; and
(B)
in paragraph (2), by striking
, provided that such an investigation
and all that follows and
inserting the following:
and there are specific and articulable facts
giving reason to believe that communications facilities registered in the name
of the person or entity have been used, through the services of such provider,
in communication with—
(A)
an individual who is
engaging or has engaged in international terrorism or clandestine intelligence
activities that involve or may involve a violation of the criminal statutes of
the United States; or
(B)
a foreign power or an agent
of a foreign power,
provided that such investigation of a
United States person is not conducted solely upon the basis of activities
protected by the first amendment of the Constitution of the United States..
(2)
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
inserting and there are specific and articulable facts giving reason to
believe that the records sought pertain to a foreign power or agent of a
foreign power
after clandestine intelligence
activities
.
(3)
Consumer reporting agency
(A)
Section 625 of the Fair
Credit Reporting Act (15 U.S.C. 1681u) is amended—
(i)
in the second sentence of
subsection (a), by inserting and there are specific and articulable
facts giving reason to believe that the information sought pertains to a
foreign power or agent of a foreign power
after clandestine
intelligence activities
;
(ii)
in the second sentence of
subsection (b), by inserting and there are specific and articulable
facts giving reason to believe that the consumer is a foreign power or an agent
of a foreign power or has been, or is about to be, in contact with a foreign
power or an agent of a foreign power
after clandestine
intelligence activities
; and
(iii)
in the first sentence of
subsection (c), by inserting and there are specific and articulable
facts giving reason to believe that the consumer report sought pertains to a
foreign power or agent of a foreign power
after clandestine
intelligence activities
.
(B)
Section 626(a) of the Fair
Credit Reporting Act (15 U.S.C. 1681v(a)) is amended by inserting and
there are specific and articulable facts giving reason to believe that the
information sought pertains to a foreign power or agent of a foreign
power
after necessary for the agency's conduct or such
investigation, activity or analysis
.
(b)
(1)
Section 2709(b) of title 18,
United States Code, as amended by subsection (a)(1) is amended by—
(A)
redesignating paragraphs (1)
and (2) as subparagraphs (A) and (B), respectively;
(B)
striking The Director
of the Federal Bureau of Investigation
and inserting the
following:
(1)
The Director of the Federal
Bureau of Investigation
;
and
(C)
adding after paragraph (1),
as amended by subparagraph (B), the following:
(2)
A request under this
subsection shall not—
(A)
contain any requirement
which would be held to be unreasonable if contained in a subpoena duces tecum
issued by a court of the United States in aid of a grand jury investigation of
espionage or international terrorism; or
(B)
require the production of
any documentary evidence which would be privileged from disclosure if demanded
by a subpoena duces tecum issued by a court of the United States in aid of a
grand jury investigation of espionage or international terrorism.
(3)
A request under this
subsection must provide notice of the recipient’s right to file a petition
under subsection (e) and explain the procedures for doing so.
.
(2)
Request for information from financial institutions
Section 1114(a)(5)(A) of the
Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)), as amended by
subsection (a)(2), is amended by—
(A)
redesignating
Financial institutions
and everything that follows as clause
(i); and
(B)
adding after clause (i) the
following new clauses:
(ii)
A request under this
subsection shall not—
(I)
contain any requirement
which would be held to be unreasonable if contained in a subpoena duces tecum
issued by a court of the United States in aid of a grand jury investigation of
espionage or international terrorism; or
(II)
require the production of
any documentary evidence which would be privileged from disclosure if demanded
by a subpoena duces tecum issued by a court of the United States in aid of a
grand jury investigation of espionage or international terrorism.
(iii)
A request under this
subsection must provide notice of the recipient’s right to file a petition
under subparagraph (E) of this paragraph and explain the procedures for doing
so.
.
(3)
Request for information from consumer reporting
agencies
Section 625 of the Fair
Credit Reporting Act (15 U.S.C. 1681u) is amended by adding at the end the
following:
(n)
(1)
A request under this
section shall not—
(A)
contain any requirement
which would be held to be unreasonable if contained in a subpoena duces tecum
issued by a court of the United States in aid of a grand jury investigation of
espionage or international terrorism; or
(B)
require the production of
any documentary evidence which would be privileged from disclosure if demanded
by a subpoena duces tecum issued by a court of the United States in aid of a
grand jury investigation of espionage or international terrorism.
(2)
A request under this
section must provide notice of the recipient’s right to file a petition under
subsection (o) and explain the procedures for doing so.
.
(4)
Request for information from consumer reporting agencies by
governmental agencies
Section 626(b) of the Fair
Credit Reporting Act (15 U.S.C. 1681v(b)) is amended by—
(A)
redesignating The
certification described
and all that follows as paragraph (1);
and
(B)
adding after paragraph (1)
the following new paragraphs:
(2)
A request under this
subsection shall not—
(A)
contain any requirement
which would be held to be unreasonable if contained in a subpoena duces tecum
issued by a court of the United States in aid of a grand jury investigation of
espionage or international terrorism; or
(B)
require the production of
any documentary evidence which would be privileged from disclosure if demanded
by a subpoena duces tecum issued by a court of the United States in aid of a
grand jury investigation of espionage or international terrorism.
(3)
A request under this
subsection must provide notice of the recipient’s right to file a petition
under subsection (f) and explain the procedures for doing so.
.
(c)
(1)
Section 2709(c) of title 18,
United States Code, is amended to read as follows:
(c)
Prohibition of certain disclosure
(1)
No wire or electronic
communication service provider, or officer, employee, or agent thereof, shall
disclose to any person that the Federal Bureau of Investigation has sought or
obtained access to information or records under this section for 90 days after
receipt of such request from the Bureau.
(2)
A wire or electronic
communication service provider, or officer, employee, or agent thereof, who
receives an order under this subsection may disclose that the Federal Bureau of
Investigation has sought or obtained access to information or records under
this section to—
(A)
those persons to whom
disclosure is necessary in order to comply with an order under this section;
or
(B)
an attorney in order to
obtain legal advice regarding such order.
(3)
The Director of the Federal
Bureau of Investigation, or the Director’s designee in a position not lower
than Deputy Assistant Director at Bureau headquarters or a Special Agent in
Charge of a Bureau field office designated by the Director, may apply for an
order prohibiting disclosure that the Federal Bureau of Investigation has
sought or obtained access to information or records under this section for an
additional 180 days.
(4)
An application for an order
pursuant to this subsection shall be filed in the district court of the United
States in any district within which the authorized investigation that is the
basis for a request pursuant to this section is being conducted.
(5)
An application for an order
pursuant to this subsection must state specific and articulable facts giving
the applicant reason to believe that disclosure that the Federal Bureau of
Investigation has sought or obtained access to information or records under
this section will result in—
(A)
endangering the life or
physical safety of any person;
(B)
flight from
prosecution;
(C)
destruction of or tampering
with evidence;
(D)
intimidation of potential
witnesses; or
(E)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(6)
The court may issue an ex
parte order pursuant to this subsection if the court determines there is reason
to believe that disclosure that the Federal Bureau of Investigation has sought
or obtained access to information or records under this section will result
in—
(A)
endangering the life or
physical safety of any person;
(B)
flight from
prosecution;
(C)
destruction of or tampering
with evidence;
(D)
intimidation of potential
witnesses; or
(E)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(7)
An order under this
subsection may be renewed for additional periods of up to 180 days upon another
application meeting the requirements of paragraph (5) and a determination by
the court that the circumstances described in paragraph (6) continue to
exist.
.
(2)
Section 1114(a)(5)(D) of the
Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(D)) is amended to
read as follows:
(D)
(i)
No financial institution,
or officer, employee, or agent of such institution, shall disclose to any
person that the Federal Bureau of Investigation has sought or obtained access
to a customer’s or entity’s financial records under this paragraph for 90 days
after receipt of such request from the Bureau.
(ii)
A financial institution, or
officer, employee, or agent of such institution, who receives an order under
this subparagraph may disclose that the Federal Bureau of Investigation has
sought or obtained access to a customer’s or entity’s financial records
to—
(I)
those persons to whom
disclosure is necessary in order to comply with a request under this
subparagraph; or
(II)
an attorney in order to
obtain legal advice regarding such request.
(iii)
The Director of the Federal
Bureau of Investigation, or the Director’s designee in a position not lower
than Deputy Assistant Director at Bureau headquarters or a Special Agent in
Charge of a Bureau field office designated by the Director, may apply for an
order prohibiting disclosure that the Federal Bureau of Investigation has
sought or obtained access to a customer’s or entity’s financial records under
this paragraph for an additional 180 days.
(iv)
An application for an order
pursuant to this subsection shall be filed in the district court of the United
States in any district within which the authorized investigation that is the
basis for a request pursuant to this paragraph is being conducted.
(v)
An application for an order
pursuant to this subparagraph must state specific and articulable facts giving
the applicant reason to believe that disclosure that the Federal Bureau of
Investigation has sought or obtained access to a customer’s or entity’s
financial records under this paragraph will result in—
(I)
endangering the life or
physical safety of any person;
(II)
flight from
prosecution;
(III)
destruction of or tampering
with evidence;
(IV)
intimidation of potential
witnesses; or
(V)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(vi)
The court may issue an ex
parte order pursuant to this subparagraph if the court determines there is
reason to believe that disclosure that the Federal Bureau of Investigation has
sought or obtained access to a customer’s or entity’s financial records under
this paragraph will result in—
(I)
endangering the life or
physical safety of any person;
(II)
flight from
prosecution;
(III)
destruction of or tampering
with evidence;
(IV)
intimidation of potential
witnesses; or
(V)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(vii)
An order under this
subparagraph may be renewed for additional periods of up to 180 days upon
another application meeting the requirements of clause (v) and a determination
by the court that the circumstances described in clause (vi) of this
subparagraph continue to exist.
.
(3)
Consumer reporting agencies
Section 625(d) of the Fair
Credit Reporting Act (15 U.S.C. 1681u(d)) is amended to read as follows:
(d)
(1)
No consumer reporting
agency, or officer, employee, or agent of a consumer reporting agency, shall
disclose to any person 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) for 90 days after receipt of a
request or order under this section, and no consumer reporting agency, or
officer, employee, or agent of a consumer reporting agency, shall include in
any consumer report any information that would indicate that the Federal Bureau
of Investigation has sought or obtained such information or a consumer
report.
(2)
A consumer reporting agency
or officer, employee, or agent of a consumer reporting agency who receives an
order under this subsection may disclose that the Federal Bureau of
Investigation has sought or obtained the identity of financial institutions or
a consumer report respecting any consumer to—
(A)
those officers, employees,
or agents of a consumer reporting agency necessary to fulfill the requirement
to disclose information to the Federal Bureau of Investigation under this
section; or
(B)
an attorney in order to
obtain legal advice regarding such requirement.
(3)
The Director of the Federal
Bureau of Investigation, or the Director’s designee in a position not lower
than Deputy Assistant Director at Bureau headquarters or a Special Agent in
Charge of a Bureau field office designated by the Director, may apply for an
order prohibiting disclosure that the Federal Bureau of Investigation has
sought or obtained access to information or records under subsection (a), (b),
or (c) for an additional 180 days.
(4)
An application for an order
pursuant to this subsection shall be filed in the district court of the United
States in any district within which the authorized investigation that is the
basis for a request or order pursuant to this section is being
conducted.
(5)
An application for an order
pursuant to this subsection must state specific and articulable facts giving
the applicant reason to believe that disclosure 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)
will result in—
(A)
endangering the life or
physical safety of any person;
(B)
flight from
prosecution;
(C)
destruction of or tampering
with evidence;
(D)
intimidation of potential
witnesses; or
(E)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(6)
The court may issue an ex
parte order pursuant to this subsection if the court determines there is reason
to believe that disclosure 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) will result
in—
(A)
endangering the life or
physical safety of any person;
(B)
flight from
prosecution;
(C)
destruction of or tampering
with evidence;
(D)
intimidation of potential
witnesses; or
(E)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(7)
An order under this
subsection may be renewed for additional periods of up to 180 days upon another
application meeting the requirements of paragraph (5) and a determination by
the court that the circumstances described in paragraph (6) continue to
exist.
.
(4)
Consumer reporting agencies reporting to governmental
agencies
Section 626(c) of the Fair
Credit Reporting Act (15 U.S.C. 1681v(c)) is amended to read as follows:
(c)
(1)
No consumer reporting
agency, or officer, employee, or agent of a consumer reporting agency, shall
disclose to any person or specify in any credit report that a government agency
has sought or obtained access to information under subsection (a) for 90 days
after receipt of the request for such information.
(2)
A consumer reporting
agency, or officer, employee, or agent of a consumer reporting agency, may
disclose that a government agency has sought or obtained access to information
under subsection (a) to—
(A)
those officers, employees,
or agents of a consumer reporting agency necessary to fulfill the requirement
to disclose information to the Federal Bureau of Investigation under this
section; or
(B)
an attorney in order to
obtain legal advice regarding such requirement.
(3)
The supervisory official or
officer who signs a certification under subsection (b) may apply in any
district court of the United States for an order prohibiting disclosure that a
government agency has sought or obtained access to information under subsection
(a) for an additional 180 days.
(4)
An application for an order
pursuant to this subsection must state specific and articulable facts giving
the applicant reason to believe that disclosure that a government agency has
sought or obtained access to information under subsection (a) will result
in—
(A)
endangering the life or
physical safety of any person;
(B)
flight from
prosecution;
(C)
destruction of or tampering
with evidence;
(D)
intimidation of potential
witnesses; or
(E)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(5)
The court may issue an ex
parte order pursuant to this subsection if the court determines there is reason
to believe that disclosure that a government agency has sought or obtained
access to information under subsection (a) will result in—
(A)
endangering the life or
physical safety of any person;
(B)
flight from
prosecution;
(C)
destruction of or tampering
with evidence;
(D)
intimidation of potential
witnesses; or
(E)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(6)
An order under this
subsection may be renewed for additional periods of up to 180 days upon another
application meeting the requirements of paragraph (4) and a determination by
the court that the circumstances described in paragraph (5) continue to
exist.
.
(d)
(1)
Section 2709 of title 18,
United States Code, is amended by—
(A)
redesignating subsection (e)
as subsection (g); and
(B)
inserting after subsection
(d) the following:
(e)
(1)
Not later than 20 days
after any person receives a request pursuant to subsection (b), or at any time
before the return date specified in the request, whichever period is shorter,
such person may file, in the district court of the United States for the
judicial district within which such person resides, is found, or transacts
business, a petition for such court to modify or set aside such request. The
time allowed for compliance with the request in whole or in part as deemed
proper and ordered by the court shall not run during the pendency of such
petition in the court. Such petition shall specify each ground upon which the
petitioner relies in seeking relief, and may be based upon any failure of such
request to comply with the provisions of this section or upon any
constitutional or other legal right or privilege of such person.
(2)
(A)
A person prohibited from
disclosing information under subsection (c) may file, in the district court of
the United States for the judicial district within which such person resides,
is found, or transacts business, a petition for the court to set aside the
nondisclosure requirement. Such petition shall specify each ground upon which
the petitioner relies in seeking relief, and may be based upon any failure of
the nondisclosure requirement to comply with the provisions of this section or
upon any constitutional or other legal right or privilege of such
person.
(B)
The court shall set aside
the nondisclosure requirement unless the court determines that there is a
reason to believe that disclosure of the request under subsection (b) will
result in—
(i)
endangering the life or
physical safety of any person;
(ii)
flight from
prosecution;
(iii)
destruction of or tampering
with evidence;
(iv)
intimidation of potential
witnesses; or
(v)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(3)
In making determinations
under this subsection, the court shall disclose to the petitioner, the counsel
of the petitioner, 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 related materials unless the court finds that such
disclosure would not assist in determining any legal or factual issue pertinent
to the case.
.
(2)
Financial record requests
Section 1114(a)(5) of the
Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)), as amended by
subsections (a), (b), and (c) of this section, is amended by adding at the end
the following:
(E)
(i)
Not later than 20 days
after any person receives a request pursuant to subparagraph (A), or at any
time before the return date specified in the request, whichever period is
shorter, such person may file, in the district court of the United States for
the judicial district within which such person resides, is found, or transacts
business, a petition for the court to modify or set aside the request. The time
allowed for compliance with the request in whole or in part as deemed proper
and ordered by the court shall not run during the pendency of the petition in
the court. The petition shall specify each ground upon which the petitioner
relies in seeking relief, and may be based upon any failure of the request to
comply with the provisions of this paragraph or upon any constitutional or
other legal right or privilege of the petitioner.
(ii)
(I)
A person prohibited from
disclosing information under subparagraph (D) may file, in the district court
of the United States for the judicial district within which the recipient
resides, is found, or transacts business, a petition for the court to set aside
the nondisclosure requirement. The petition shall specify each ground upon
which the petitioner relies in seeking the relief, and may be based upon any
failure of the nondisclosure requirement to comply with the provisions of this
section or upon any constitutional or other legal right or privilege of the
petitioner.
(II)
The court shall set aside
the nondisclosure requirement unless the court determines that there is a
reason to believe that disclosure of the request under subparagraph (A) will
result in—
-
(aa)
endangering the life or
physical safety of any person;
-
(bb)
flight from
prosecution;
-
(cc)
destruction of or tampering
with evidence;
-
(dd)
intimidation of potential
witnesses; or
-
(ee)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(iii)
In making determinations
under this subparagraph, the court shall disclose to the petitioner, the
counsel of the petitioner, 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 related materials unless the court finds that such
disclosure would not assist in determining any legal or factual issue pertinent
to the case.
.
(3)
Section 625 of the Fair
Credit Reporting Act (15 U.S.C. 1681u), as amended by subsection (b) of this
section, is amended by adding at the end the following:
(o)
(1)
Not later than 20 days
after any person receives a request or order pursuant to subsection (a), (b),
or (c), or at any time before the return date specified in the request or
order, whichever period is shorter, such person may file, in the district court
of the United States for the judicial district within which such person
resides, is found, or transacts business, a petition for the court to modify or
set aside the request or order. The time allowed for compliance with the
request or order in whole or in part as deemed proper and ordered by the court
shall not run during the pendency of the petition in the court. The petition
shall specify each ground upon which the petitioner relies in seeking the
relief, and may be based upon any failure of the request or order to comply
with the provisions of this section or upon any constitutional or other legal
right or privilege of the petitioner.
(2)
(A)
A person prohibited from
disclosing information under subsection (d) may file, in the district court of
the United States for the judicial district within which the recipient resides,
is found, or transacts business, a petition for the court to set aside the
nondisclosure requirement. The petition shall specify each ground upon which
the petitioner relies in seeking the relief, and may be based upon any failure
of the nondisclosure requirement to comply with the provisions of this section
or upon any constitutional or other legal right or privilege of the
petitioner.
(B)
The court shall set aside
the nondisclosure requirement unless the court determines that there is a
reason to believe that disclosure of request or order under subsection (a),
(b), or (c) will result in—
(i)
endangering the life or
physical safety of any person;
(ii)
flight from
prosecution;
(iii)
destruction of or tampering
with evidence;
(iv)
intimidation of potential
witnesses; or
(v)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(3)
In making determinations
under this subsection, the court shall disclose to the petitioner, the counsel
of the petitioner, 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 related materials unless the court finds that such
disclosure would not assist in determining any legal or factual issue pertinent
to the case.
.
(4)
Consumer report requests by governmental agencies
Section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681v) is amended by adding at the end the
following:
(f)
(1)
Not later than 20 days
after any person receives a request pursuant to subsection (a), or at any time
before the return date specified in the request, whichever period is shorter,
such person may file, in the district court of the United States for the
judicial district within which such person resides, is found, or transacts
business, a petition for the court to modify or set aside the request. The time
allowed for compliance with the request in whole or in part as deemed proper
and ordered by the court shall not run during the pendency of the petition in
the court. The petition shall specify each ground upon which the petitioner
relies in seeking the relief, and may be based upon any failure of the request
to comply with the provisions of this section or upon any constitutional or
other legal right or privilege of the petitioner.
(2)
(A)
A person prohibited from
disclosing information under subsection (c) may file, in the district court of
the United States for the judicial district within which the recipient resides,
is found, or transacts business, a petition for the court to set aside the
nondisclosure requirement. The petition shall specify each ground upon which
the petitioner relies in seeking the relief, and may be based upon any failure
of the nondisclosure requirement to comply with the provisions of this section
or upon any constitutional or other legal right or privilege of the
petitioner.
(B)
The court shall set aside
the nondisclosure requirement unless the court determines that there is a
reason to believe that disclosure of the request under subsection (a) will
result in—
(i)
endangering the life or
physical safety of any person;
(ii)
flight from
prosecution;
(iii)
destruction of or tampering
with evidence;
(iv)
intimidation of potential
witnesses; or
(v)
otherwise seriously
endangering the national security of the United States by alerting a target, a
target’s associates, or the foreign power of which the target is an agent, of
the Government’s interest in the target.
(3)
In making determinations
under this subsection, the court shall disclose to the petitioner, the counsel
of the petitioner, 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 related materials unless the court finds that such
disclosure would not assist in determining any legal or factual issue pertinent
to the case.
.
(e)
(1)
Section 2709 of title 18,
United States Code, as amended by subsection (d), is amended by inserting after
subsection (e) the following:
(f)
(1)
(A)
Any information acquired
from a request pursuant to this section concerning any United States person may
be used and disclosed by Federal officers and employees without the consent of
the United States person only in accordance with the provisions of this
subsection.
(B)
No information acquired
from an order pursuant to this section may be used or disclosed by Federal
officers or employees except for lawful purposes.
(2)
Disclosure for law enforcement purposes
No information acquired
pursuant to this section shall be disclosed for law enforcement purposes unless
such disclosure is accompanied by a statement that such information, or any
information derived therefrom, may only be used in a criminal proceeding with
the advance authorization of the Attorney General.
(3)
Notification of intended disclosure by the united
states
Whenever the United States
intends to enter into evidence or otherwise use or disclose in any trial,
hearing, or other proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United States against an
aggrieved person any information obtained or derived from a request pursuant to
this section, the United States shall, before the trial, hearing, or other
proceeding or at a reasonable time before an effort to so disclose or so use
this information or submit it in evidence, notify the aggrieved person and the
court or other authority in which the information is to be disclosed or used
that the United States intends to so disclose or so use such
information.
(4)
Notification of intended disclosure by state or political
subdivision
Whenever any State or
political subdivision thereof intends to enter into evidence or otherwise use
or disclose in any trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other authority of the State
or political subdivision thereof against an aggrieved person any information
obtained or derived from a request pursuant to this section, the State or
political subdivision thereof shall notify the aggrieved person, the court or
other authority in which the information is to be disclosed or used, and the
Attorney General that the State or political subdivision thereof intends to so
disclose or so use such information.
(5)
(A)
Any aggrieved person
against whom evidence obtained or derived from a request pursuant to this
section 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, or a
State or political subdivision thereof, may move to suppress the evidence
obtained or derived from the request, as the case may be, on the grounds
that—
(i)
the information was
acquired in violation of the Constitution or laws of the United States;
or
(ii)
the request was not in
conformity with the requirements of this section.
(B)
A motion under subparagraph
(A) shall be made before the trial, hearing, or other proceeding unless there
was no opportunity to make such a motion or the aggrieved person concerned was
not aware of the grounds of the motion.
(6)
(A)
Whenever—
(i)
a court or other authority
is notified pursuant to paragraph (3) or (4);
(ii)
a motion is made pursuant
to paragraph (5); or
(iii)
any motion or request is
made by an aggrieved person pursuant to any other statute or rule of the United
States or any State before any court or other authority of the United States or
any State to—
(I)
discover or obtain
materials relating to a request issued pursuant to this section; or
(II)
discover, obtain, or
suppress evidence or information obtained or derived from a request issued
pursuant to this section;
the United States district court
or, where the motion is made before another authority, the United States
district court in the same district as the authority shall, notwithstanding any
other provision of law and if the Attorney General files an affidavit under
oath that disclosure would harm the national security of the United States,
review in camera the materials as may be necessary to determine whether the
request was lawful.
(B)
In making a determination
under subparagraph (A), 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 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 related materials, or evidence or information obtained or
derived from the order.
(7)
Effect of determination of lawfulness
(A)
If the United States
district court determines pursuant to paragraph (6) that the request was not in
compliance with the Constitution or laws of the United States, the court may,
in accordance with the requirements of law, suppress the evidence which was
unlawfully obtained or derived from the request or otherwise grant the motion
of the aggrieved person.
(B)
If the court determines
that the request was lawful, it may deny the motion of the aggrieved person
except to the extent that due process requires discovery or disclosure.
(8)
Orders granting motions or
requests under paragraph (6), decisions under this section that a request was
not lawful, and orders of the United States district court requiring review or
granting disclosure of applications, orders, or other related materials shall
be final orders and binding upon all courts of the United States and the
several States except a United States court of appeals or the Supreme
Court.
(g)
As used in this
section—
(1)
the term agent of a
foreign power has the meaning given such term by section 101(b) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b));
(2)
the term aggrieved
person means a person whose name, address, length of service, or local
or long distance toll records were sought or obtained under this section;
and
(3)
the term foreign
power has the meaning given such term by section 101(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)).
.
(2)
Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414) is amended by inserting after
subsection (b) the following:
(c)
(1)
(A)
Any information acquired
from a request pursuant to this section concerning any United States person may
be used and disclosed by Federal officers and employees without the consent of
the United States person only in accordance with the provisions of this
subsection.
(B)
No information acquired
from an order pursuant to this section may be used or disclosed by Federal
officers or employees except for lawful purposes.
(2)
Disclosure for law enforcement purposes
No information acquired
pursuant to this section shall be disclosed for law enforcement purposes unless
the disclosure is accompanied by a statement that the information, or any
information derived therefrom, may only be used in a criminal proceeding with
the advance authorization of the Attorney General.
(3)
Notification of intended disclosure by the united
states
Whenever the United States
intends to enter into evidence or otherwise use or disclose in any trial,
hearing, or other proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United States against an
aggrieved person any information obtained or derived from a request pursuant to
this section, the United States shall, before the trial, hearing, or other
proceeding, or at a reasonable time before an effort to so disclose or so use
this information or submit it in evidence, notify the aggrieved person and the
court or other authority in which the information is to be disclosed or used
that the United States intends to so disclose or so use such
information.
(4)
Notification of intended disclosure by state or political
subdivision
Whenever any State or
political subdivision thereof intends to enter into evidence or otherwise use
or disclose in any trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other authority of the State
or political subdivision thereof against an aggrieved person any information
obtained or derived from a request pursuant to this section, the State or
political subdivision thereof shall notify the aggrieved person, the court or
other authority in which the information is to be disclosed or used, and the
Attorney General that the State or political subdivision thereof intends to so
disclose or so use such information.
(5)
(A)
Any aggrieved person
against whom evidence obtained or derived from a request pursuant to this
section 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, or a
State or political subdivision thereof, may move to suppress the evidence
obtained or derived from the request, as the case may be, on the grounds
that—
(i)
the information was
acquired in violation of the Constitution or laws of the United States;
or
(ii)
the request was not in
conformity with the requirements of this section.
(B)
A motion to suppress under
subparagraph (A) shall be made before the trial, hearing, or other proceeding
unless there was no opportunity to make such a motion or the aggrieved person
concerned was not aware of the grounds of the motion.
(6)
(A)
Whenever—
(i)
a court or other authority
is notified pursuant to paragraph (3) or (4);
(ii)
a motion is made pursuant
to paragraph (5); or
(iii)
any motion or request is
made by an aggrieved person pursuant to any other statute or rule of the United
States or any State before any court or other authority of the United States or
any State to—
(I)
discover or obtain
materials relating to a request issued pursuant to this section; or
(II)
discover, obtain, or
suppress evidence or information obtained or derived from a request issued
pursuant to this section;
the United States district court
or, where the motion is made before another authority, the United States
district court in the same district as the authority shall, notwithstanding any
other provision of law and if the Attorney General files an affidavit under
oath that disclosure would harm the national security of the United States,
review in camera the materials as may be necessary to determine whether the
request was lawful.
(B)
In making a determination
under subparagraph (A), 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 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 related materials, or evidence or information obtained or
derived from the order.
(7)
Effect of determination of lawfulness
(A)
If the United States
district court determines pursuant to paragraph (6) that the request was not in
compliance with the Constitution or laws of the United States, the court may,
in accordance with the requirements of law, suppress the evidence which was
unlawfully obtained or derived from the request or otherwise grant the motion
of the aggrieved person.
(B)
If the court determines
that the request was lawful, it may deny the motion of the aggrieved person
except to the extent that due process requires discovery or disclosure.
(8)
Orders granting motions or
requests under paragraph (6), decisions under this section that a request was
not lawful, and orders of the United States district court requiring review or
granting disclosure of applications, orders, or other related materials shall
be final orders and binding upon all courts of the United States and the
several States except a United States Court of Appeals or the Supreme
Court.
.
(3)
Section 625 of the Fair
Credit Reporting Act (15 U.S.C. 1681u), as amended by subsections (b) and (d),
is amended by adding at the end the following:
(p)
(1)
(A)
Any information acquired
from a request or an order pursuant to this section concerning any United
States person may be used and disclosed by Federal officers and employees
without the consent of the United States person only in accordance with the
provisions of this subsection.
(B)
No information acquired
from an order pursuant to this section may be used or disclosed by Federal
officers or employees except for lawful purposes.
(2)
Disclosure for law enforcement purposes
No information acquired
pursuant to this section shall be disclosed for law enforcement purposes unless
the disclosure is accompanied by a statement that the information, or any
information derived therefrom, may only be used in a criminal proceeding with
the advance authorization of the Attorney General.
(3)
Notification of intended disclosure by the united
states
Whenever the United States
intends to enter into evidence or otherwise use or disclose in any trial,
hearing, or other proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United States against an
aggrieved person any information obtained or derived from a request or an order
pursuant to this section, the United States shall, before the trial, hearing,
or other proceeding, or at a reasonable time before an effort to so disclose or
so use this information or submit it in evidence, notify the aggrieved person
and the court or other authority in which the information is to be disclosed or
used that the United States intends to so disclose or so use such
information.
(4)
Notification of intended disclosure by state or political
subdivision
Whenever any State or
political subdivision thereof intends to enter into evidence or otherwise use
or disclose in any trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other authority of the State
or political subdivision thereof against an aggrieved person any information
obtained or derived from a request or an order pursuant to this section, the
State or political subdivision thereof shall notify the aggrieved person, the
court or other authority in which the information is to be disclosed or used,
and the Attorney General that the State or political subdivision thereof
intends to so disclose or so use such information.
(5)
(A)
Any aggrieved person
against whom evidence obtained or derived from a request or an order pursuant
to this section 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, or a State or political subdivision thereof, may move to suppress the
evidence obtained or derived from the request or the order, as the case may be,
on the grounds that—
(i)
the information was
acquired in violation of the Constitution or laws of the United States;
or
(ii)
the request or the order
was not in conformity with the requirements of this section.
(B)
A motion to suppress under
subparagraph (A) shall be made before the trial, hearing, or other proceeding
unless there was no opportunity to make such a motion or the aggrieved person
concerned was not aware of the grounds of the motion.
(6)
(A)
Whenever—
(i)
a court or other authority
is notified pursuant to paragraph (3) or (4);
(ii)
a motion is made pursuant
to paragraph (5); or
(iii)
any motion or request is
made by an aggrieved person pursuant to any other statute or rule of the United
States or any State before any court or other authority of the United States or
any State to—
(I)
discover or obtain
materials relating to a request or an order issued pursuant to this section;
or
(II)
discover, obtain, or
suppress evidence or information obtained or derived from a request or an order
issued pursuant to this section;
the United States district court
or, where the motion is made before another authority, the United States
district court in the same district as the authority shall, notwithstanding any
other provision of law and if the Attorney General files an affidavit under
oath that disclosure would harm the national security of the United States,
review in camera the materials as may be necessary to determine whether the
request or the order was lawful
(B)
In making a determination
under subparagraph (A), 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 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 related materials, or evidence or information obtained or
derived from the order.
(7)
Effect of determination of lawfulness
(A)
If the United States
district court determines pursuant to paragraph (6) that the request or the
order was not in compliance with the Constitution or laws of the United States,
the court may, in accordance with the requirements of law, suppress the
evidence which was unlawfully obtained or derived from the request or the order
or otherwise grant the motion of the aggrieved person.
(B)
If the court determines
that the request or the order was lawful, it may deny the motion of the
aggrieved person except to the extent that due process requires discovery or
disclosure.
(8)
Orders granting motions or
requests under paragraph (6), decisions under this section that a request was
not lawful, and orders of the United States district court requiring review or
granting disclosure of applications, orders, or other related materials shall
be final orders and binding upon all courts of the United States and the
several States except a United States Court of Appeals or the Supreme
Court.
.
(4)
Consumer reports requested by governmental agencies
Section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681v), as amended by subsection (d), is
amended by adding at the end the following:
(g)
Any information acquired
from a request pursuant to this section concerning any United States person may
be used and disclosed by Federal officers and employees, a State, or a
political subdivision of a State without the consent of the United States
person only in accordance with the procedures established under section
625(p).
.
(f)
(1)
Financial record requests
Section 1101 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3401) is amended—
(A)
in paragraph (7), by striking
and
at the end;
(B)
in paragraph (8), by striking
the period and inserting ; and
; and
(C)
by adding at the end the
following:
(9)
the term agent of a
foreign power has the meaning given such term by section 101(b) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b));
(10)
the term aggrieved
person means any person whose financial records are produced, disclosed,
or otherwise made public without the consent of such person; and
(11)
the term foreign
power has the meaning given such term by section 101(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)).
.
(2)
Section 603 of the Fair
Credit Reporting Act (15 U.S.C. 1681a) is amended by adding at the end the
following:
(y)
The term agent of a
foreign power has the meaning given such term by section 101(b) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)).
(z)
The term aggrieved
person means any consumer or person whose consumer report is produced,
disclosed, or otherwise made public without the consent of such consumer or
person.
(aa)
The term foreign
power has the meaning given such term by section 101(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)).
.
6.
Privacy protections for pen registers and trap and trace
devices
(a)
(1)
Section 3122(b)(2) of title
18, United States Code, is amended by striking a certification by the
applicant
and inserting a statement by the applicant of specific
and articulable facts showing there is reason to believe
.
(2)
Section 3123(a) of title 18,
United States Code, is amended—
(A)
in paragraph (1), by striking
the attorney for the Government has certified to the court that the
information likely to be obtained by such installation and use is relevant to
an ongoing criminal investigation.
and inserting the application
meets the requirements of section 3122.
; and
(B)
in paragraph (2), by striking
the State law enforcement or investigative officer
and all that
follows and inserting the application meets the requirements of section
3122.
.
(3)
Section 3126 of title 18,
United States Code, is amended—
(A)
in the matter preceding
paragraph (1), by striking law enforcement agencies of the Department of
Justice
and inserting attorneys for the
Government
;
(B)
in paragraph (4), by striking
and
at the end;
(C)
in paragraph (5), by striking
the period and inserting ; and
;
(D)
in the matter preceding
paragraph (1), by striking The Attorney General
and inserting
the following:
(a)
The Attorney General
; and
(E)
by adding at the end the
following:
(6)
whether the application for
the order and the applications for any extensions were granted as applied for,
modified, or denied;
(7)
the specific types of
dialing, routing, addressing, or signaling information sought in the
application and obtained with the order; and
(8)
a summary of any litigation
to which the Government is or was a party regarding the interpretation of the
provisions of this chapter.
(b)
The Attorney General shall
annually make public a full and complete report concerning the number of
applications for pen register orders and orders for trap and trace devices
applied for pursuant to this chapter and the number of such orders and
extensions of such orders granted or denied pursuant to this chapter during the
preceding calendar year. Such report shall include a summary and analysis of
the data required to be reported to Congress under subsection (a).
.
(4)
Section 3123 of title 18,
United States Code, is amended by adding at the end the following:
(e)
(1)
A court that receives an
application for an order or extension under section 3122(a) shall cause to be
served on the persons named in the application, and such other parties to
communications as the court determines should receive notice in the interest of
justice, an inventory, including—
(A)
the fact of the application
for an order or extension under section 3122(a) and whether the court granted
or denied such application; and
(B)
if the order or extension
was granted—
(i)
the date of the entry of
such order or extension and the period of authorized, approved, or disapproved
use of the pen register or trap and trace device;
(ii)
whether a pen register or
trap and trace device was installed or used during the period authorized;
and
(iii)
the specific types of
dialing, routing, addressing, or signaling information sought in the
application and collected by the pen register or trap and trace device.
(2)
The court shall serve
notice under paragraph (1) within a reasonable time, but not later than 90 days
after—
(A)
the filing of the
application for an order or extension under section 3122(a) that is denied;
or
(B)
the termination of the
period of an order, or extensions thereof, that is granted.
(3)
The court may issue an ex
parte order postponing the service of the inventory required under paragraph
(1) upon a showing of good cause by an attorney for the Government.
(4)
Upon the filing of a
motion, the court may make available for inspection by a person served under
paragraph (1), or counsel for such person, such portions of the collected
communications, applications, and orders as the court determines to be in the
interest of justice.
.
(b)
Foreign intelligence authority
Section 402(c)(2) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)(2)) is amended
by striking a certification by the applicant
and inserting
a statement by the applicant of specific and articulable facts showing
there is reason to believe
.
7.
Modification of definition of domestic terrorism
Section 2331(5) of title 18,
United States Code, is amended—
(1)
by striking subparagraphs (A)
and (B) and inserting the following:
(A)
involve acts dangerous to
human life that constitute a Federal crime of terrorism (as that term is
defined in section 2332b(g)(5)); and
;
and
(2)
by redesignating subparagraph
(C) as subparagraph (B).
8.
Public reporting on the foreign intelligence surveillance act
of 1978
(a)
Section 601(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)) is amended in the
matter preceding paragraph (1)—
(1)
by striking , in a
manner consistent with the protection of national security,
; and
(2)
by inserting
public
before report
.
(b)
Section 601(a)(5) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(5)) is amended
by inserting , which may be redacted in order to protect national
security
after that include significant construction or
interpretation of the provisions of this Act
.