1.Short
title and table of contents
(a)This Act may be cited
as the National Security Letter Reform
Act of 2007
or the NSL Reform Act of 2007
.
(b)The table of contents for this Act is as follows:
Sec. 1. Short title and table
of contents.
Sec. 2. National Security Letter authority for communications
subscriber records.
Sec. 3. National Security Letter authority for certain
financial records.
Sec. 4. National Security Letter authority for certain consumer
report records.
Sec. 5. Judicial review of National Security
Letters.
Sec. 6. National Security Letter compliance program and
tracking database.
Sec. 7. Public reporting on National Security
Letters.
Sec. 8. Sunset of expanded National Security Letter
authorities.
Sec. 9. Privacy protections for section 215 business records
orders.
Sec. 10. Judicial review of section 215 orders.
Sec. 11. Resources for FISA applications.
Sec. 12. Enhanced protections for emergency
disclosures.
Sec. 13. Clarification regarding data retention.
Sec. 14. Least intrusive means.
2.National security
letter authority for communications subscriber recordsSection 2709 of title 18, United States
Code, is amended to read as follows:
2709.National
Security Letter for communications subscriber records
(a)
(1)The Director of the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no lower than Deputy Assistant
Director at Bureau headquarters or Special Agent in Charge of a Bureau field
office, may issue in writing and cause to be served on a wire or electronic
communications service provider a National Security Letter requiring the
production of the following:
(A)The name of the
customer or subscriber.
(B)The address of
the customer or subscriber.
(C)The length of the
provision of service by such provider to the customer or subscriber (including
start date) and the types of service utilized by the customer or
subscriber.
(D)The telephone
number or instrument number, or other subscriber number or identifier, of the
customer or subscriber, including any temporarily assigned network
address.
(E)The means and
sources of payment for such service (including any credit card or bank account
number).
(F)Information about
any service or merchandise orders, including any shipping information and
vendor locations.
(G)The name and
contact information, if available, of any other wire or electronic
communications service providers facilitating the communications of the
customer or subscriber.
(2)A
National Security Letter issued pursuant to this section shall not require the
production of local or long distance telephone records or electronic
communications transactional information not listed in paragraph (1).
(b)
(1)A National Security Letter shall be issued under
subsection (a) only where—
(A)the records
sought are relevant to an ongoing, authorized and specifically identified
national security investigation (other than a threat assessment); and
(B)there are
specific and articulable facts providing reason to believe that the
records—
(i)pertain to a
suspected agent of a foreign power; or
(ii)pertain to an
individual who has been in contact with, or otherwise directly linked to, a
suspected agent of a foreign power who is the subject of an ongoing, authorized
and specifically identified national security investigation (other than a
threat assessment); or
(iii)pertain to the
activities of a suspected agent of a foreign power, where those activities are
the subject of an ongoing, authorized and specifically identified national
security investigation (other than a threat assessment), and obtaining the
records is the least intrusive means that could be used to identify persons
believed to be involved in such activities.
(2)For
purposes of this section, an ongoing, authorized, and specifically identified
national security investigation—
(A)shall be
conducted under guidelines approved by the Attorney General and Executive Order
12333 (or successor order); and
(B)shall not be
conducted with respect to a United States person upon the basis of activities
protected by the first amendment to the Constitution of the United
States.
(3)A
National Security Letter issued under subsection (a) shall—
(A)describe the
records to be produced with sufficient particularity to permit them to be
fairly identified;
(B)include the date
on which the records must be provided, which shall allow a reasonable period of
time within which the records can be assembled and made available;
(C)provide clear and
conspicuous notice of the principles and procedures set forth in this section,
including notification of any nondisclosure requirement under subsection (c)
and a statement laying out the rights and responsibilities of the recipient;
and
(D)not contain any
requirement that 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 or require the production of any documentary evidence that 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.
(4)The Director of the Federal Bureau of Investigation shall
direct that a signed copy of each National Security Letter issued under this
section be retained in the database required to be established by section 6 of
the National Security Letter Reform Act of
2007.
(c)Prohibition of
certain disclosure
(1)
(A)If a certification is issued pursuant to subparagraph
(B), no wire or electronic communication service provider, or officer,
employee, or agent thereof, who receives a National Security Letter under this
section, shall disclose to any person the particular information specified in
such certification for 30 days after receipt of such National Security
Letter.
(B)The
requirements of subparagraph (A) shall apply if the Director of the Federal
Bureau of Investigation, or a designee of the Director whose rank shall be no
lower than Deputy Assistant Director at Bureau headquarters or a Special Agent
in charge of a Bureau field office, certifies that—
(i)there is reason
to believe that disclosure of particular information about the existence or
contents of a National Security Letter issued under this section 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;
(V)interference with
diplomatic relations; or
(VI)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; and
(ii)the
nondisclosure requirement is narrowly tailored to address the specific harm
identified by the Government.
(C)If
the facts supporting a nondisclosure requirement cease to exist prior to the
30-day period specified in subparagraph (A), an appropriate official of the
Federal Bureau of Investigation shall promptly notify the wire or electronic
service provider, or officer, employee, or agent thereof, subject to the
nondisclosure requirement that such nondisclosure requirement is no longer in
effect.
(2)
(A)A wire or electronic communication service provider, or
officer, employee, or agent thereof, who receives a National Security Letter
under this section may disclose information otherwise subject to any applicable
nondisclosure requirement to—
(i)those persons to
whom disclosure is necessary in order to comply with a National Security Letter
under this section;
(ii)an attorney in
order to obtain legal advice or assistance regarding such National Security
Letter; or
(iii)other persons
as permitted by the Director of the Federal Bureau of Investigation or the
designee of the Director.
(B)Nondisclosure
requirementA person to whom disclosure is made pursuant to
subparagraph (A) shall be subject to the nondisclosure requirements applicable
to a person to whom a National Security Letter is directed under this section
in the same manner as such person.
(C)Any
recipient who discloses to a person described in subparagraph (A) information
otherwise subject to a nondisclosure requirement shall inform such person of
the applicable nondisclosure requirement.
(3)The
Director of the Federal Bureau of Investigation, or a designee of the Director
whose rank shall be no lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a Bureau field office, may apply
for an order prohibiting disclosure of particular information about the
existence or contents of a National Security Letter issued 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
shall include—
(A)a statement of
specific and articulable facts giving the applicant reason to believe that
disclosure of particular information about the existence or contents of a
National Security Letter issued under this section 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;
(v)interference with
diplomatic relations; or
(vi)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; and
(B)an explanation of
how the nondisclosure requirement is narrowly tailored to address the specific
harm identified by the Government.
(6)The
court may issue an ex parte order pursuant to this subsection if the court
determines—
(A)there is reason
to believe that disclosure of particular information about the existence or
contents of a National Security Letter issued under this section 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;
(v)interference with
diplomatic relations; or
(vi)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; and
(B)the nondisclosure
requirement is narrowly tailored to address the specific harm identified by the
Government.
(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.
(8)If
the facts supporting a nondisclosure requirement cease to exist prior to the
expiration of the time period imposed by a court for that nondisclosure
requirement, an appropriate official of the Federal Bureau of Investigation
shall promptly notify the court, and the court shall terminate such
nondisclosure requirement.
(d)Minimization
and destruction
(1)Not later than 180 days after the enactment of this
section, the Attorney General shall establish minimization and destruction
procedures governing the retention and dissemination by the Federal Bureau of
Investigation of any records received by the Federal Bureau of Investigation in
response to a National Security Letter under this section.
(2)In
this section, the term minimization and destruction procedures
means—
(A)specific
procedures that are reasonably designed in light of the purpose and technique
of a National Security Letter, to minimize the retention, and prohibit the
dissemination, of nonpublicly available information concerning unconsenting
United States persons consistent with the need of the United States to obtain,
produce, and disseminate foreign intelligence information, including procedures
to ensure that information obtained pursuant to a National Security Letter
regarding persons no longer of interest in an authorized investigation, or
information obtained pursuant to a National Security Letter that does not meet
the requirements of this section or is outside the scope of such National
Security Letter, is returned or destroyed;
(B)procedures that
require that nonpublicly available information, which is not foreign
intelligence information, as defined in section 101(e)(1) of the Foreign
Intelligence Surveillance Act of 1978, shall not be disseminated in a manner
that identifies any United States person, without such person's consent, unless
such person's identity is necessary to understand foreign intelligence
information or assess its importance; and
(C)notwithstanding
subparagraphs (A) and (B), procedures that allow for the retention and
dissemination of information that is evidence of a crime which has been, is
being, or is about to be committed and that is to be retained or disseminated
for law enforcement purposes.
(e)Requirement
that certain congressional bodies be informed
(1)On a semiannual basis the Director of the Federal Bureau
of Investigation shall fully inform the Permanent Select Committee on
Intelligence of the Senate and the Select Committee on Intelligence of the
House of Representatives, and the Committee on the Judiciary of the Senate and
the Committee on the Judiciary of the House of Representatives, concerning all
requests made under this section.
(2)The
report required by paragraph (1) shall include—
(A)a description of
the minimization and destruction procedures adopted by the Attorney General
pursuant to subsection (d), including any changes to such minimization
procedures previously adopted by the Attorney General;
(B)a summary of the
court challenges brought pursuant to section 3511 of title 18, United States
Code, by recipients of National Security Letters;
(C)a description of
the extent to which information obtained with National Security Letters under
this section has aided intelligence investigations and an explanation of how
such information has aided such investigations; and
(D)a description of
the extent to which information obtained with National Security Letters under
this section has aided criminal prosecutions and an explanation of how such
information has aided such prosecutions.
(f)
(1)
(A)Any
information acquired from a National Security Letter 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 minimization and destruction procedures required by this
section.
(B)No information acquired from a National Security Letter
pursuant to this section may be used or disclosed by Federal officers or
employees except for lawful purposes.
(2)Disclosure for
law enforcement purposesNo 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 StatesWhenever 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 National
Security Letter 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 subdivisionWhenever
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 National Security Letter
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 National Security Letter 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 National Security Letter, 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 National
Security Letter was not issued 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 National Security Letter issued pursuant to this
section; or
(II)discover,
obtain, or suppress evidence or information obtained or derived from a National
Security Letter 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.) or other applicable
law, 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 National Security Letter 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 National Security Letter or otherwise grant the motion of the
aggrieved person.
(B)If the court determines that the National Security Letter
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
National Security Letter 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 information or 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)).
.
3.National
Security Letter authority for certain financial recordsSection 1114 of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414) is amended to read as follows:
1114.National
Security Letter for certain financial records
(a)
(1)The Director of the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no lower than Deputy Assistant
Director at Bureau headquarters or Special Agent in Charge of a Bureau field
office, may issue in writing and cause to be served on a financial institution,
a National Security Letter requiring the production of—
(A)the name of the
customer or entity with whom the financial institution has a financial
relationship;
(B)the address of
the customer or entity with whom the financial institution has a financial
relationship;
(C)the length of
time during which the customer or entity has had an account or other financial
relationship with the financial institution (including the start date) and the
type of account or other financial relationship; and
(D)any account
number or other unique identifier associated with the financial relationship of
the customer or entity to the financial institution.
(2)A
National Security Letter issued pursuant to this section may require the
production only of records identified in subparagraphs (A) through (D) of
paragraph (1).
(b)National
Security Letter requirements
(1)A National Security Letter issued under this section
shall be subject to the requirements of subsections (b) through (g) of section
2709 of title 18, United States Code, in the same manner and to the same extent
as those provisions apply with respect to wire and electronic communication
service providers.
(2)For
purposes of this section, the reporting requirement in section 2709(e) of title
18, United States Code, shall also require informing the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee on Financial
Services of the House of Representatives.
(c)Definition of financial
institution
For
purposes of this section, section 1115, and section 1117, insofar as they
relate to the operation of this section, the term financial
institution
has the same meaning as in subsections (a)(2) and (c)(1) of
section 5312 of title 31, except that, for purposes of this section, such term
shall include only such a financial institution any part of which is located
inside any State or territory of the United States, the District of Columbia,
Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, or the United States Virgin
Islands.
.
4.National Security
Letter authority for certain consumer report recordsSection 626 of the Fair Credit Reporting Act
(15 U.S.C. 1681u) is amended—
(1)by striking the
section heading and inserting the following:
626.National Security
Letters for certain consumer report
records
;
(2)by striking
subsections (a) through (d) and inserting the following:
(a)
(1)The Director of the Federal Bureau of Investigation, or a
designee of the Director whose rank shall be no lower than Deputy Assistant
Director at Bureau headquarters or Special Agent in Charge of a Bureau field
office, may issue in writing and cause to be served on a consumer reporting
agency a National Security Letter requiring the production of—
(A)the name of a
consumer;
(B)the current and
former address of a consumer;
(C)the current and
former places of employment of a consumer; and
(D)the names and
addresses of all financial institutions (as that term is defined in section
1101 of the Right to Financial Privacy Act of 1978) at which a consumer
maintains or has maintained an account, to the extent that such information is
in the files of the consumer reporting agency.
(2)A
National Security Letter issued pursuant to this section may not require the
production of a consumer report.
(b)National Security Letter
requirements
(1)A National Security Letter issued under this section
shall be subject to the requirements of subsections (b) through (g) of section
2709 of title 18, United States Code, in the same manner and to the same extent
as those provisions apply with respect to wire and electronic communication
service providers.
(2)For
purposes of this section, the reporting requirement in section 2709(e) of title
18, United States Code, shall also require informing the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee on Financial
Services of the House of
Representatives.
;
(3)by striking
subsections (f) through (h); and
(4)by redesignating
subsections (e) and (i) through (m) as subsections (c) through (h),
respectively.
5.Judicial review
of National Security Letters
(a)Review of
nondisclosure ordersSection 3511(b) of title 18, United States
Code, is amended to read as follows:
(b)
(1)The recipient of a request for records or other
information under section 2709 of this title, section 626 of the Fair Credit
Reporting Act, section 1114 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) to modify or set aside a nondisclosure requirement imposed in
connection with such a request. 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
section 2709 of this title, section 626 of the Fair Credit Reporting Act,
section 1114 of the Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, or upon any constitutional or other legal right
or privilege of such person.
(2)The
court shall modify or set aside the nondisclosure requirement unless the court
determines that—
(A)there is a reason
to believe that disclosure of the information subject to the nondisclosure
requirement 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;
(v)interference with
diplomatic relations; or
(vi)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; and
(B)the nondisclosure
requirement is narrowly tailored to address the specific harm identified by the
Government.
.
(b)Section
3511(d) of title 18, United States Code, is amended to read as follows:
(d)In
making determinations under this section, 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 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.) or other applicable law,
portions of the application, National Security Letter, or other related
materials.
.
(c)Section 3511 of title 18, United States Code, is
amended—
(1)in subsection
(a), by—
(A)inserting after
(a)
the following Request.—
;
(B)striking
2709(b)
and inserting 2709
;
(C)striking
626(a) or (b) or 627(a)
and inserting 626
;
and
(D)striking
1114(a)(5)(A)
and inserting 1114
; and
(2)in subsection
(c), by—
(A)inserting after
(c)
the following Failure to comply.—
;
(B)by striking
2709(b)
and inserting 2709
;
(C)by striking
626(a) or (b) or 627(a)
and inserting 626
;
and
(D)by striking
1114(a)(5)(A)
and inserting 1114
.
(d)Section
3511(e) of title 18, United States Code, is repealed.
6.National
Security Letter compliance program and tracking database
(a)The Director of the Federal Bureau of Investigation shall
establish a program to ensure compliance with the amendments made by sections
2, 3, and 4 of this Act.
(b)The compliance
program required by subsection (a) shall include the establishment of a
database, the purpose of which shall be to track all National Security Letters
issued by the Federal Bureau of Investigation under section 1114 of the Right
to Financial Privacy Act of 1978 (12 U.S.C. 3414), section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u), and section 2709 of title 18, United
States Code.
(c)The database required by this section shall
include—
(1)a signed copy of
each National Security Letter;
(2)the date the
National Security Letter was issued and for what type of information;
(3)whether the
National Security Letter seeks information regarding a United States person or
non-United States person;
(4)the ongoing,
authorized, and specifically identified national security investigation (other
than a threat assessment) to which the National Security Letter relates;
(5)whether the
National Security Letter seeks information regarding an individual who is the
subject of such investigation;
(6)when the
information requested was received and, if applicable, when it was destroyed;
and
(7)whether the
information gathered was disclosed for law enforcement purposes.
7.Public reporting
on National Security LettersSection 118(c) of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109–177) is
amended—
(1)in paragraph (1)—
(A)by striking concerning different
United States persons
; and
(B)in subparagraph
(A), by striking , excluding the number of requests for subscriber
information
;
(2)by redesignating
paragraph (2) as paragraph (3); and
(3)by inserting
after paragraph (1) the following:
(2)The
report required by this subsection shall include the total number of requests
described in paragraph (1) requiring disclosure of information
concerning—
(A)United States
persons;
(B)non-United States
persons;
(C)persons who are
the subjects of authorized national security investigations; and
(D)persons who are
not the subjects of authorized national security
investigations.
.
8.Sunset of
expanded National Security Letter authoritiesSubsection 102(b) of Public Law 109–177 is
amended to read as follows:
(b)Sections 206,
215, 358(g), 505 sunset
(1)Effective December 31, 2009, the following provisions are
amended to read as they read on October 25, 2001—
(A)sections 501,
502, and 105(c)(2) of the Foreign Intelligence Surveillance Act of 1978;
(B)section 2709 of
title 18, United States Code;
(C)sections 626 and
627 of the Fair Credit Reporting Act (15 U.S.C. 1681u, 1681v); and
(D)section 1114 of
the Right to Financial Privacy Act (12 U.S.C. 3414).
(2)With
respect to any particular foreign intelligence investigation that began before
the date on which the provisions referred to in paragraph (1) cease to have
effect, or with respect to any particular offense or potential offense that
began or occurred before the date on which such provisions cease to have
effect, such provisions shall continue in
effect.
.
9.Privacy
protections for section 215 business records orders
(a)Section 501(b) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(b)(2)) is
amended—
(1)in paragraph (1)(B), by striking
and
after the semicolon;
(2)in paragraph
(2)—
(A)in subparagraph (A), by striking ,
such things being presumptively
through the end of the subparagraph and
inserting a semicolon;
(B)by redesignating
subparagraph (B) as subparagraph (C) and striking the period at the end and
inserting ; and
; and
(C)by inserting
after subparagraph (A) the following:
(B)a statement of
specific and articulable facts providing reason to believe that the tangible
things sought—
(i)pertain to a
suspected agent of a foreign power; or
(ii)pertain to an
individual who has been in contact with, or otherwise directly linked to, a
suspected agent of a foreign power if the circumstances of that contact or link
suggest that the records sought will be relevant to an ongoing, authorized and
specifically identified national security investigation (other than a threat
assessment) of that suspected agent of a foreign power;
and
;
and
(3)by inserting at
the end the following:
(3)if the applicant
is seeking a nondisclosure requirement described in subsection (d), shall
include—
(A)a statement of
specific and articulable facts providing reason to believe that disclosure of
particular information about the existence or contents of the order requiring
the production of tangible things under this section 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;
(v)interference with
diplomatic relations; or
(vi)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; and
(B)an explanation of
how the nondisclosure requirement is narrowly tailored to address the specific
harm identified by the
Government.
.
(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—
(A)striking
subsections (a) and (b)
and inserting subsection (a) and
paragraphs (1) and (2) of subsection (b)
; and
(B)inserting at the
end the following: If the judge finds that the requirements of
subsection (b)(3) have been met, such order shall include a nondisclosure
requirement subject to the principles and procedures described in subsection
(d)
; and
(2)in paragraph
(2)(C), by inserting before the semicolon , if
applicable
.
(c)Section 501(d) of the 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) that
contains a nondisclosure requirement shall disclose to any person the
particular information specified in such nondisclosure requirement for 180 days
after receipt of such order.
(2)
(A)A
person who receives an order under subsection (c) that contains a nondisclosure
requirement may disclose information otherwise subject to any applicable
nondisclosure requirement to—
(i)those persons to
whom disclosure is necessary in order to comply with an order under this
section;
(ii)an attorney in
order to obtain legal advice or assistance regarding such order; or
(iii)other persons
as permitted by the Director of the Federal Bureau of Investigation or the
designee of the Director.
(B)A
person to whom disclosure is made pursuant to subparagraph (A) shall be subject
to the nondisclosure requirements applicable to a person to whom an order is
directed under this section in the same manner as such person.
(C)Any
person who discloses to a person described in subparagraph (A) information
otherwise subject to a nondisclosure requirement shall notify such person of
the applicable nondisclosure requirement.
(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 renewals for the prohibition on disclosure of particular information
about the existence or contents of an order requiring the production of
tangible things under this section for additional periods of up to 180 days
each. Such nondisclosure requirement shall be renewed if a court having
jurisdiction pursuant to paragraph (4) determines that the application meets
the requirements of subsection (b)(3).
(4)An
application for a renewal 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).
.
(d)Section 501(h) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) is amended to read as follows:
(h)
(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 minimization procedures required by this section.
(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 purposesNo 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 StatesWhenever 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 subdivisionWhenever
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 issued 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.) or other applicable
law, 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.
.
(e)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.
.
10.Judicial review
of section 215 ordersSection
501(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is
amended to read as follows:
(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 modify or set aside the nondisclosure requirement unless the court
determines that—
(i)there is reason
to believe that disclosure of the information subject to the nondisclosure
requirement 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;
(V)interference with
diplomatic relations; or
(VI)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; and
(ii)the
nondisclosure requirement is narrowly tailored to address the specific harm
identified by the Government.
(3)
(A)Not later than 180 days after the date of enactment of
the National Security Letter Reform Act of 2007, 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
petitionersIn making determinations under this subsection,
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
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.) or other applicable law, portions of the application, order, or other
related
materials.
.
11.Resources for
FISA applications
(a)
(1)The Department of Justice shall establish a secure
electronic system for the submission of documents and other information to the
court established under section 103(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803) relating to applications for orders under chapter
36 of title 50, authorizing electronic surveillance, physical searches, the use
of pen register and trap and trace devices, and the production of tangible
things.
(2)Section 1103(4) of the Violence Against Women and
Department of Justice Reauthorization Act of 2005 is amended—
(A)in subparagraph
(C), by striking and
after the semicolon;
(B)in subparagraph
(D), by striking the period and inserting ; and
; and
(C)by adding at the
end the following:
(E)$5,000,000 for
the implementation of the secure electronic filing system established by
Section 11(a)(1) of the National Security Letter Reform
Act.
.
(b)Personnel and
information technology needs
(1)Office of
Intelligence Policy and Review
(A)The Office of Intelligence Policy and Review of the
Department of Justice may hire personnel and procure information technology, as
needed, to ensure the timely and efficient processing of applications to the
court established under section 103(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803).
(B)
(i)Section 1103(4)
of the Violence Against Women and Department of Justice Reauthorization Act of
2005 is amended—
(I)in subparagraph
(D), by striking and
after the semicolon;
(II)in subparagraph
(E), by striking the period and inserting ; and
; and
(III)by adding at
the end the following:
(F)not to exceed
$3,000,000 for the personnel and information technology as specified in Section
11(b)(1)(A) of the National Security Letter Reform
Act.
.
(ii)Section 1104(4)
of the Violence Against Women and Department of Justice Reauthorization Act of
2005 is amended—
(I)in subparagraph
(C), by striking and
after the semicolon;
(II)in subparagraph
(D), by striking the period and inserting ; and
; and
(III)by adding at
the end the following:
(E)not to exceed
$3,000,000 for the personnel and information technology as specified in Section
11(b)(1)(A) of the National Security Letter Reform
Act.
.
(2)
(A)The Federal Bureau of Investigation may hire personnel
and procure information technology, as needed, to ensure the timely and
efficient processing of applications to the Foreign Intelligence Surveillance
Court.
(B)
(i)Section 1103(7)
of the Violence Against Women and Department of Justice Reauthorization Act of
2005 is amended by inserting before the period the following: “, and which
shall include not to exceed $3,000,000 for the personnel and information
technology as specified in Section 11(b)(2)(A) of the National Security Letter
Reform Act”.
(ii)Section 1104(7)
of the Violence Against Women and Department of Justice Reauthorization Act of
2005 is amended by inserting before the period the following: “, and which
shall include not to exceed $3,000,000 for the personnel and information
technology as specified in Section 11(b)(2)(A) of the National Security Letter
Reform Act”.
12.Enhanced
protections for emergency disclosures
(a)Stored
communications ActSection 2702 of title 18, United States Code
is amended—
(1)in subsection
(b)(8), by—
(A)striking ,
in good faith,
and inserting reasonably
;
(B)inserting
immediate
after involving
; and
(C)adding before the
period: “, subject to the limitations of subsection (d) of this
section;”;
(2)in subsection
(c)(4) by—
(A)striking .
in good faith,
and inserting reasonably
;
(B)inserting
immediate
after involving
; and
(C)adding before the
period: “, subject to the limitations of subsection (d) of this
section.”;
(3)redesignating
subsection (d) as subsection (e) and adding after subsection (c) the
following:
(d)
(1)If
a governmental entity requests that a provider divulge information pursuant to
subsection (b)(8) or (c)(4), the request shall specify that the disclosure is
on a voluntary basis and shall document the factual basis for believing that an
emergency involving immediate danger of death or serious physical injury to any
person requires disclosure without delay of the information.
(2)Within 5 days of obtaining access to records under
subsection (b)(8) or (c)(4), the governmental entity shall file with the
appropriate court a signed, sworn statement of a supervisory official of a rank
designated by the head of the governmental entity setting forth the grounds for
the emergency access.
;
and
(4)in subsection
(e), as redesignated in paragraphs (1) and (2), by striking subsection
(b)(8)
and inserting subsections (b)(8) and
(c)(4)
.
(b)Right to
financial privacy Act
(1)The Right to Financial Privacy Act of 1978 (12 U.S.C.
3401 et seq.) is amended by inserting after section 1120 the following:
1121.
(a)
(1)A
financial institution (as defined in section 1114(c)) may divulge a record
described in section 1114(a) pertaining to a customer to a Government
authority, if the financial institution reasonably believes that an emergency
involving immediate danger of death or serious physical injury to any person
requires disclosure without delay of information relating to the
emergency.
(2)If a Government authority requests that a financial
institution divulge information pursuant to this section, the request shall
specify that the disclosure is on a voluntary basis, and shall document the
factual basis for believing that an emergency involving immediate danger of
death or serious physical injury to any person requires disclosure without
delay of the information.
(b)In
the instances specified in subsection (a), the Government shall submit to the
financial institution the certificate required in section 1103(b), signed by a
supervisory official of a rank designated by the head of the Government
authority.
(c)Within 5 days of obtaining access to financial records
under this section, the Government authority shall file with the appropriate
court a signed, sworn statement of a supervisory official of a rank designated
by the head of the Government authority setting forth the grounds for the
emergency access. The Government authority shall thereafter comply with the
notice provisions of section 1109.
(d)Reporting of
emergency disclosuresOn an annual basis, the Attorney General of
the United States shall submit to the Committee on the Judiciary and the
Committee on Financial Services of the House of Representatives and the
Committee on the Judiciary and the Committee on Banking, Housing, and Urban
Affairs of the Senate a report containing—
(1)the number of
individuals for whom the Department of Justice has received voluntary
disclosures under this section; and
(2)a summary of the
bases for disclosure in those instances where—
(A)voluntary
disclosures under this section were made to the Department of Justice;
and
(B)the investigation
pertaining to those disclosures was closed without the filing of criminal
charges.
.
(2)The Right to Financial Privacy Act of 1978 (12 U.S.C.
3401 et seq.) is amended—
(A)in section 1102
(12 U.S.C. 3402), by striking or 1114
and inserting 1114,
or 1121
; and
(B)in section
1109(c) (12 U.S.C. 3409(c)), by striking 1114(b)
and inserting
1121
.
(c)Fair Credit
Reporting ActSection 627 of the Fair Credit Reporting Act (15
U.S.C. 1681v) is amended to read as follows:
627.
(a)
(1)A
consumer reporting agency may divulge identifying information respecting any
consumer, limited to the name, address, former addresses, places of employment,
or former places of employment of the consumer, to a Government agency, if the
consumer reporting agency reasonably believes that an emergency involving
immediate danger of death or serious physical injury to any person requires
disclosure without delay of information relating to the emergency.
(2)If a Government agency requests that a consumer reporting
agency divulge information pursuant to this section, the request shall specify
that the disclosure is on a voluntary basis, and shall document the factual
basis for believing that an emergency involving immediate danger of death or
serious physical injury to any person requires disclosure without delay of the
information.
(b)Within 5 days of obtaining access to identifying
information under this section, the Government agency shall file with the
appropriate court a signed, sworn statement of a supervisory official of a rank
designated by the head of the Government agency setting forth the grounds for
the emergency access.
(c)Reporting of
emergency disclosuresOn an annual basis, the Attorney General of
the United States shall submit to the Committee on the Judiciary and the
Committee on Financial Services of the House of Representatives and the
Committee on the Judiciary and the Committee on Banking, Housing, and Urban
Affairs of the Senate a report containing—
(1)the number of
individuals for whom the Department of Justice has received voluntary
disclosures under this section; and
(2)a summary of the
bases for disclosure in those instances where—
(A)voluntary
disclosures under this section were made to the Department of Justice;
and
(B)the investigation
pertaining to those disclosures was closed without the filing of criminal
charges.
.
13.Clarification
regarding data retentionSubsection 2703(f) of title 18, United
States Code, is amended by adding at the end the following:
(3)A provider of
wire or electronic communications services or a remote computing service who
has received a request under this subsection shall not disclose the records
referred to in paragraph (1) until such provider has received a court order or
other
process.
.
14.
(a)
(1)The Attorney General shall issue guidelines (consistent
with Executive Order 12333 or successor order) instructing that when choices
are available between the use of information collection methods in national
security investigations that are more or less intrusive, the least intrusive
collection techniques feasible are to be used.
(2)Specific
collection techniquesThe guidelines required by this section
shall provide guidance with regard to specific collection techniques, including
the use of national security letters, considering such factors as—
(A)the effect on the
privacy of individuals;
(B)the potential
damage to reputation of individuals; and
(C)any special First
Amendment concerns relating to a potential recipient of a National Security
Letter or other legal process, including a direction that prior to issuing such
National Security Letter or other legal process to a library or bookseller,
investigative procedures aimed at obtaining the relevant information from
entities other than a library or bookseller be utilized and have failed, or
reasonably appear to be unlikely to succeed if tried or endanger lives if
tried.
(b)In
this section:
(1)The
term bookseller means a person or entity engaged in the sale,
rental, or delivery of books, journals, magazines, or other similar forms of
communication in print or digitally.
(2)The
term library means a library (as that term is defined in section
213(2) of the Library Services and Technology Act (20 U.S.C. 9122(2))) whose
services include access to the Internet, books, journals, magazines,
newspapers, or other similar forms of communication in print or digitally to
patrons for their use, review, examination, or circulation.