I 111th CONGRESS 1st Session H. R. 3969 IN THE HOUSE OF REPRESENTATIVES October 29, 2009 Mr. Reyes (for himself, Mr. Hastings of Florida, Mr. Ruppersberger, and Mr. Boren) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Financial Services and Select Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To extend and modify certain provisions of the Foreign Intelligence Surveillance Act of 1978 relating to combating terrorism.

1.

Short title

This Act may be cited as the Counterterrorism Authorities Improvements Act of 2009.

2.

Extension of sunset of certain provisions of USA PATRIOT Act

(a)

USA PATRIOT Improvement and Reauthorization Act of 2005

Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (18 U.S.C. 2510 note; Public Law 109–177) is amended by striking December 31, 2009 and inserting December 31, 2013. (b)

Intelligence Reform and Terrorism Prevention Act of 2004

Section 6001(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 1801 note; Public Law 108–458) is amended by striking December 31, 2009 and inserting December 31, 2013.

3.

Access to certain business records under section 501 of the Foreign Intelligence Surveillance Act of 1978

(a)

Factual basis for and issuance of orders

Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended— (1)in subsection (b)(2)— (A)in subparagraph (A)— (i)by striking a statement of facts showing and inserting a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant; and (ii)by striking clandestine intelligence activities, and all that follows and inserting clandestine intelligence activities;; and (B)by striking subparagraph (B) and inserting the following new subparagraph: (B)a statement of proposed minimization procedures. ; and (2)in subsection (c)— (A)in paragraph (1)— (i)by inserting and that the proposed minimization procedures meet the definition of minimization procedures under subsection (g) after subsections (a) and (b); and (ii)by striking the second sentence; and (B)in paragraph (2)— (i)in subparagraph (D), by striking and at the end; (ii)in subparagraph (E), by striking the period at the end and inserting a semicolon; and (iii)by adding at the end the following: (F)shall direct that the minimization procedures be followed; and . (b)

Disclosure of requests

Such section 501 is further amended— (1)in subsection (b)— (A)in paragraph (2)(B), by striking application. and inserting application; and; and (B)by adding at the end the following new paragraph: (3)may include a request that such order prohibit any person from disclosing to any other person that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to such order for a particular period of time, other than in accordance with subsection (d). ; (2)in subsection (c)(2), by adding at the end the following new subparagraph: (G)if— (i)such application includes a request for a prohibition in accordance with subsection (b)(3), and (ii)the judge finds that there is reason to believe that the disclosure of the order will result in— (I)a danger to the national security of the United States, (II)interference with a criminal, counterterrorism, or counterintelligence investigation, (III)interference with diplomatic relations, or (IV)danger to the life or physical safety of any person, shall prohibit any person from disclosing to any other person that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to such order for an appropriate period of time as determined by the judge, except in accordance with subsection (d).; (3)in subsection (d)(1)— (A)by striking No person and inserting If an order under this section includes a prohibition referred to in subsection (c)(2)(G), no person; and (B)by striking an order under this section and inserting such order during the period of time such prohibition is effective under such order; and (4)in subsection (f)(1)(B), by striking an order imposed under subsection (d) and inserting a prohibition referred to in subsection (c)(2)(G) included in an order under this section. (c)

Audit

Section 106A of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 120 Stat. 200) is amended— (1)in subsection (b)(1), by striking 2006 and inserting 2013; (2)in subsection (c), by adding at the end the following new paragraphs: (3)

Calendar years 2007, 2008, and 2009

Not later than December 31, 2010, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2007, 2008, and 2009. (4)

Calendar years 2010 and 2011

Not later than December 31, 2012, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2010 and 2011. (5)

Calendar years 2012 and 2013

Not later than December 31, 2014, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2012 and 2013. ; (3)in subsection (d)— (A)in paragraph (1) by striking subsection (c)(1) or (c)(2) and inserting paragraph (1), (2), (3), (4), or (5) of subsection (c); and (B)in paragraph (2), by striking subsections (c)(1) and (c)(2) and inserting paragraph (1), (2), (3), (4), or (5) of subsection (c); and (4)in subsection (e), by striking subsections (c)(1) and (c)(2) and inserting paragraph (1), (2), (3), (4), or (5) of subsection (c).

4.

Judicial review of FISA orders and national security letters

(a)

FISA

Section 501(f)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(f)(2)) is amended— (1)in subparagraph (A)— (A)in clause (i)— (i)in the first sentence, by striking a production order and inserting a production order or nondisclosure order; and (ii)in the second sentence, by striking Not less than 1 year and all that follows; and (B)in clause (ii) in the third sentence, by striking production order or nondisclosure; and (2)in subparagraph (C)— (A)by striking clause (ii); and (B)by redesignating clause (iii) as clause (ii). (b)

Judicial review of national security letters

Section 3511(b) of title 18, United States Code, is amended to read as follows: (b)

Nondisclosure

(1)

In general

(A)

Notice

If a recipient of a request or order for a report, records, or other information under section 2709 of this title, section 626 or 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u and 1681v), section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414), or section 802 of the National Security Act of 1947 (50 U.S.C. 436), wishes to have a court review a nondisclosure requirement imposed in connection with the request or order, the recipient shall notify the Government. (B)

Application

Not later than 30 days after the date of receipt of a notification under subparagraph (A), the Government shall apply for an order prohibiting the disclosure of the existence or contents of the relevant request or order. An application under this subparagraph may be filed in the district court of the United States for any district within which the authorized investigation that is the basis for the request or order is being conducted. The applicable nondisclosure requirement shall remain in effect during the pendency of proceedings relating to the requirement. (C)

Consideration

A district court of the United States that receives an application under subparagraph (B) should rule expeditiously, and shall, subject to paragraph (3), issue a nondisclosure order that includes conditions appropriate to the circumstances. (2)

Application contents

An application for a nondisclosure order or extension thereof under this subsection shall include a certification from the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of the department, agency, or instrumentality, containing a statement of specific and articulable facts indicating that, absent a prohibition of disclosure under this subsection, there may result— (A)a danger to the national security of the United States; (B)interference with a criminal, counterterrorism, or counterintelligence investigation; (C)interference with diplomatic relations; or (D)danger to the life or physical safety of any person. (3)

Standard

A district court of the United States shall issue a nondisclosure requirement order or extension thereof under this subsection if the court determines, giving substantial weight to the certification under paragraph (2) that there is reason to believe that disclosure of the information subject to the nondisclosure requirement during the applicable time period will result in— (A)a danger to the national security of the United States; (B)interference with a criminal, counterterrorism, or counterintelligence investigation; (C)interference with diplomatic relations; or (D)danger to the life or physical safety of any person. . (c)

Minimization

Section 501(g)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)(1)) is amended by striking Not later than and all that follows and inserting At or before the end of the period of time for the production of tangible things under an order approved under this section or at any time after the production of tangible things under an order approved under this section, a judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated..

5.

Limitations on disclosure of national security letters

(a)

In general

Section 2709 of title 18, United States Code, is amended by striking subsection (c) and inserting the following: (c)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (3) is provided, no wire or electronic communication service provider, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person that the Director of the Federal Bureau of Investigation has sought or obtained access to information or records under this section. (B)

Certification

The requirements of subparagraph (A) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that, absent a prohibition of disclosure under this subsection, there may result— (i)a danger to the national security of the United States; (ii)interference with a criminal, counterterrorism, or counterintelligence investigation; (iii)interference with diplomatic relations; or (iv)danger to the life or physical safety of any person. (2)

Exception

(A)

In general

A wire or electronic communication service provider, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to— (i)those persons to whom disclosure is necessary in order to comply with the request; (ii)an attorney in order to obtain legal advice or assistance regarding the request; or (iii)other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director. (B)

Persons necessary for compliance

Upon a request by the Director of the Federal Bureau of Investigation or the designee of the Director, those persons to whom disclosure will be made under subparagraph (A)(i) or to whom such disclosure was made before the request shall be identified to the Director or the designee. (C)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued. (D)

Notice

Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall inform the person of the applicable nondisclosure requirement. (3)

Right to judicial review

(A)

In general

A wire or electronic communications service provider that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement. (B)

Notification

A request under subsection (a) shall— (i)state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall provide notice to the Government in accordance with section 3511(b)(1)(A); and (ii)describe the procedures for providing such notice. (C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of this title, unless an appropriate official of the Federal Bureau of the Investigation makes a notification under paragraph (4). (4)

Termination

In the case of any request for which a recipient has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, 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 the nondisclosure requirement is no longer in effect. . (b)

Identity of financial institutions and credit reports

Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) is amended by striking subsection (d) and inserting the following: (d)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (3) is provided, no consumer reporting agency, or officer, employee, or agent thereof, that receives a request or order under subsection (a), (b), or (c), shall disclose or specify in any consumer report, that the Federal Bureau of Investigation has sought or obtained access to information or records under subsection (a), (b), or (c). (B)

Certification

The requirements of subparagraph (A) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that, absent a prohibition of disclosure under this subsection, there may result— (i)a danger to the national security of the United States; (ii)interference with a criminal, counterterrorism, or counterintelligence investigation; (iii)interference with diplomatic relations; or (iv)danger to the life or physical safety of any person. (2)

Exception

(A)

In general

A consumer reporting agency, or officer, employee, or agent thereof, that receives a request or order under subsection (a), (b), or (c) may disclose information otherwise subject to any applicable nondisclosure requirement to— (i)those persons to whom disclosure is necessary in order to comply with the request or order; (ii)an attorney in order to obtain legal advice or assistance regarding the request or order; or (iii)other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director. (B)

Persons necessary for compliance

Upon a request by the Director of the Federal Bureau of Investigation or the designee of the Director, those persons to whom disclosure will be made under subparagraph (A)(i) or to whom such disclosure was made before the request shall be identified to the Director or the designee. (C)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request or order is issued under subsection (a), (b), or (c) in the same manner as the person to whom the request or order is issued. (D)

Notice

Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall inform the person of the applicable nondisclosure requirement. (3)

Right to judicial review

(A)

In general

A consumer reporting agency that receives a request or order under subsection (a), (b), or (c) shall have the right to judicial review of any applicable nondisclosure requirement. (B)

Notification

A request under subsection (a), (b), or (c) shall— (i)state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall provide notice to the Government in accordance with section 3511(b)(1)(A) of title 18, United States Code; and (ii)describe the procedures for providing such notice. (C)

Initiation of proceedings

If a recipient of a request or order under subsection (a), (b), or (c) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code, unless an appropriate official of the Federal Bureau of Investigation makes a notification under paragraph (4). (4)

Termination

In the case of any request or order for which a consumer reporting agency has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the consumer reporting agency, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect. . (c)

Disclosures to Governmental agencies for counterterrorism purposes

Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) is amended by striking subsection (c) and inserting the following: (c)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (3) is provided, no consumer reporting agency, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person or specify in any consumer report, that a government agency has sought or obtained access to information under subsection (a). (B)

Certification

The requirements of subparagraph (A) shall apply if the head of a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism, or a designee, certifies that, absent a prohibition of disclosure under this subsection, there may result— (i)a danger to the national security of the United States; (ii)interference with a criminal, counterterrorism, or counterintelligence investigation; (iii)interference with diplomatic relations; or (iv)danger to the life or physical safety of any person. (2)

Exception

(A)

In general

A consumer reporting agency, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to— (i)those persons to whom disclosure is necessary in order to comply with the request; (ii)an attorney in order to obtain legal advice or assistance regarding the request; or (iii)other persons as permitted by the head of the government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism, or a designee. (B)

Persons necessary for compliance

Upon a request by the head of a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism, or a designee, those persons to whom disclosure will be made under subparagraph (A)(i) or to whom such disclosure was made before the request shall be identified to the head of the government agency or the designee. (C)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued. (D)

Notice

Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall inform the person of the applicable nondisclosure requirement. (3)

Right to judicial review

(A)

In general

A consumer reporting agency that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement. (B)

Notification

A request under subsection (a) shall— (i)state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall provide notice to the Government in accordance with section 3511(b)(1)(A) of title 18, United States Code; and (ii)describe the procedures for providing such notice. (C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code, unless an appropriate official of the government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism makes a notification under paragraph (4). (4)

Termination

In the case of any request for which a consumer reporting agency has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism shall promptly notify the consumer reporting agency, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect. . (d)

Financial records

Section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)) is amended by striking subparagraph (D) and inserting the following: (D)

Prohibition of certain disclosure

(i)

Prohibition

(I)

In general

If a certification is issued under subclause (II) and notice of the right to judicial review under clause (iii) is provided, no financial institution, or officer, employee, or agent thereof, that receives a request under subparagraph (A), shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under subparagraph (A). (II)

Certification

The requirements of subclause (I) 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, absent a prohibition of disclosure under this subparagraph, there may result— (aa)a danger to the national security of the United States; (bb)interference with a criminal, counterterrorism, or counterintelligence investigation; (cc)interference with diplomatic relations; or (dd)danger to the life or physical safety of any person. (ii)

Exception

(I)

In general

A financial institution, or officer, employee, or agent thereof, that receives a request under subparagraph (A) may disclose information otherwise subject to any applicable nondisclosure requirement to— (aa)those persons to whom disclosure is necessary in order to comply with the request; (bb)an attorney in order to obtain legal advice or assistance regarding the request; or (cc)other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director. (II)

Persons necessary for compliance

Upon a request by the Director of the Federal Bureau of Investigation or the designee of the Director, those persons to whom disclosure will be made under subclause (I)(aa) or to whom such disclosure was made before the request shall be identified to the Director or the designee. (III)

Nondisclosure requirement

A person to whom disclosure is made under subclause (I) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subparagraph (A) in the same manner as the person to whom the request is issued. (IV)

Notice

Any recipient that discloses to a person described in subclause (I) information otherwise subject to a nondisclosure requirement shall inform the person of the applicable nondisclosure requirement. (iii)

Right to judicial review

(I)

In general

A financial institution that receives a request under subparagraph (A) shall have the right to judicial review of any applicable nondisclosure requirement. (II)

Notification

A request under subparagraph (A) shall— (aa)state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall provide notice to the Government in accordance with section 3511(b)(1)(A) of title 18, United States Code; and (bb)describe the procedures for providing such notice. (III)

Initiation of proceedings

If a recipient of a request under subparagraph (A) makes a notification under subclause (II), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code, unless an appropriate official of the Federal Bureau of Investigation makes a notification under clause (iv). (iv)

Termination

In the case of any request for which a financial institution has submitted a notification under clause (iii)(II), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the financial institution, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect. . (e)

Requests by authorized investigative agencies

Section 802 of the National Security Act of 1947 (50 U.S.C. 436), is amended by striking subsection (b) and inserting the following: (b)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (3) is provided, no governmental or private entity, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person that an authorized investigative agency described in subsection (a) has sought or obtained access to information under subsection (a). (B)

Certification

The requirements of subparagraph (A) shall apply if the head of an authorized investigative agency described in subsection (a), or a designee, certifies that, absent a prohibition of disclosure under this subsection, there may result— (i)a danger to the national security of the United States; (ii)interference with a criminal, counterterrorism, or counterintelligence investigation; (iii)interference with diplomatic relations; or (iv)danger to the life or physical safety of any person. (2)

Exception

(A)

In general

A governmental or private entity, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to— (i)those persons to whom disclosure is necessary in order to comply with the request; (ii)an attorney in order to obtain legal advice or assistance regarding the request; or (iii)other persons as permitted by the head of the authorized investigative agency described in subsection (a). (B)

Persons necessary for compliance

Upon a request by the head of an authorized investigative agency described in subsection (a), or a designee, those persons to whom disclosure will be made under subparagraph (A)(i) or to whom such disclosure was made before the request shall be identified to the head of the authorized investigative agency or the designee. (C)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued. (D)

Notice

Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall inform the person of the applicable nondisclosure requirement. (3)

Right to judicial review

(A)

In general

A governmental or private entity that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement. (B)

Notification

A request under subsection (a) shall— (i)state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall provide notice to the Government in accordance with section 3511(b)(1)(A) of title 18, United States Code; and (ii)describe the procedures for providing such notice. (C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code, unless an appropriate official of the authorized investigative agency described in subsection (a) makes a notification under paragraph (4). (4)

Termination

In the case of any request for which a governmental or private entity has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the authorized investigative agency described in subsection (a) shall promptly notify the governmental or private entity, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect. .

6.

Certification for access to telephone toll and transactional records

(a)

In general

Section 2709 of title 18, United States Code, as amended by this Act, is amended— (1)by redesignating subsections (c), (d), (e), and (f) as subsections (d), (e), (f), and (g), respectively; and (2)by inserting after subsection (b) the following: (c)

Written statement

The Director of the Federal Bureau of Investigation, or a designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may make a certification under subsection (b) only upon a written statement, which shall be retained by the Federal Bureau of Investigation, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized investigation described in subsection (b). . (b)

Identity of financial institutions and credit reports

Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u), as amended by this Act, is amended— (1)by redesignating subsections (d) through (m) as subsections (e) through (n), respectively; and (2)by inserting after subsection (c) the following: (d)

Written statement

The Director of the Federal Bureau of Investigation, or a designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may make a certification under subsection (a) or (b) only upon a written statement, which shall be retained by the Federal Bureau of Investigation, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized investigation described in subsection (a) or (b), as the case may be. . (c)

Disclosures to Governmental agencies for counterterrorism purposes

Section 627(b) of the Fair Credit Reporting Act (15 U.S.C. 1681v(b)) is amended— (1)in the subsection heading, by striking Form of certification and inserting Certification; (2)by striking The certification and inserting the following: (1)

Form of certification

The certification ; and (3)by adding at the end the following: (2)

Written statement

A supervisory official or officer described in paragraph (1) may make a certification under subsection (a) only upon a written statement, which shall be retained by the government agency, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized investigation described in subsection (a). . (d)

Financial records

Section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)), as amended by this Act, is amended— (1)by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and (2)by inserting after subparagraph (A) the following: (B)The Director of the Federal Bureau of Investigation, or a designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may make a certification under subparagraph (A) only upon a written statement, which shall be retained by the Federal Bureau of Investigation, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized investigation described in subparagraph (A). . (e)

Requests by authorized investigative agencies

Section 802(a) of the National Security Act of 1947 (50 U.S.C. 436(a)) is amended by adding at the end the following: (4)A department or agency head, deputy department or agency head, or senior official described in paragraph (3)(A) may make a certification under paragraph (3)(A) only upon a written statement, which shall be retained by the authorized investigative agency, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized inquiry or investigation described in paragraph (3)(A)(ii). . (f)

Technical and conforming amendments

(1)

Obstruction of criminal investigations

Section 1510(e) of title 18, United States Code, is amended by striking section 2709(c)(1) of this title, section 626(d)(1) or 627(c)(1) of the Fair Credit Reporting Act (15 U.S.C. 1681u(d)(1) or 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(D)(i) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(3)(A) or 3414(a)(5)(D)(i)), and inserting section 2709(d)(1) of this title, section 626(e)(1) or 627(c)(1) of the Fair Credit Reporting Act (15 U.S.C. 1681u(e)(1) and 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(E)(i) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(3)(A) and 3414(a)(5)(E)(i)),. (2)

Semiannual reports

Section 507(b) of the National Security Act of 1947 (50 U.S.C. 415b(b)) is amended— (A)in paragraph (4), by striking section 624(h)(2) of the Fair Credit Reporting Act (15 U.S.C. 1681u(h)(2)) and inserting section 626(i)(2) of the Fair Credit Reporting Act (15 U.S.C. 1681u(i)(2)); and (B)in paragraph (5), by striking section 1114(a)(5)(C) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(C)) and inserting section 1114(a)(5)(D) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(D)).

7.

Additional rules relating to national security letters

(a)

Audit of use of national security letters

Section 119 of the USA PATRIOT Improvement and Reauthorization Act of 2005 is amended— (1)in subsection (b)(1), by striking 2003 through 2006 and inserting 2007 through 2013; (2)in subsection (b)(3)(E), by striking following the date of the enactment of this Act and inserting after 2006; (3)in subsection (c)(1)— (A)by striking Not later than one year after the date of the enactment of this Act, or upon completion of the audit under this section for calendar years 2003 and 2004, whichever is earlier and inserting Not later than December 31, 2010; and (B)by striking conducted under this subsection for calendar years 2003 and 2004 and inserting conducted under this section for calendar years 2007 through 2009; (4)in subsection (c)(2)— (A)by striking 2005 each place it appears (including in the subsection heading) and inserting 2010; (B)by striking 2006 each place it appears (including in the subsection heading) and inserting 2011; and (C)by striking 2007 and inserting 2012; and (5)by adding at the end the following new paragraph: (3)

Calendar years 2012 and 2013

Not later than December 31, 2014, or upon completion of the audit under this subsection for calendar years 2012 and 2013, whichever is earlier, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under the subsection for calendar years 2012 and 2013. . (b)

Procedures regarding information obtained through national security letters

(1)

In general

Not later than 90 days after the date of the enactment of this Act, the Attorney General shall— (A)establish procedures for the collection, use, and storage of information obtained in response to a national security letter; and (B)submit to the appropriate congressional committees the procedures established under subparagraph (A). (2)

Revisions to procedures

The Attorney General shall notify the appropriate congressional committees of any significant changes to the procedures established under paragraph (1)(A). (3)

Definitions

In this subsection: (A)

Appropriate congressional committees

The term appropriate congressional committees means— (i)the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives; and (ii)the Select Committee on Intelligence and the Committee on the Judiciary of the Senate. (B)

National security letter

the term national security letter means a request for information issued under section 2709 of title 18, United States Code, section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(5)), subsection (a) or (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u), or section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v).

8.

Lone wolf terrorists as agents of foreign powers

Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended by adding at the end the following new subsection: (e)

Requirements for applications for individual terrorists

(1)

Delegation

The Attorney General may only delegate the authority to approve an application under subsection (a) for an order approving electronic surveillance of an agent of a foreign power, as defined in section 101(b)(1)(C), to the Deputy Attorney General or the Assistant Attorney General for National Security. (2)

Notice to Congress

Not later than seven days after an application for an order approving electronic surveillance of an agent of a foreign power, as defined in section 101(b)(1)(C), is made under subsection (a), the Attorney General shall submit to the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate notice of such application. .

9.

Orders for pen registers and trap and trace devices for foreign intelligence purposes

(a)

Application

Section 402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended— (1)in paragraph (1), by striking and at the end; (2)in paragraph (2)— (A)by striking a certification by the applicant and inserting a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant; and (B)by striking the period at the end and inserting ; and; and (3)by adding at the end the following: (3)a statement of whether minimization procedures are being proposed and, if so, a statement of the proposed minimization procedures. . (b)

Minimization

(1)

Definition

Section 401 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841) is amended by adding at the end the following: (4)The term minimization procedures means— (A)specific procedures, that are reasonably designed in light of the purpose and technique of an order for the installation and use of a pen register or trap and trace device, to minimize the retention, and prohibit the dissemination, of nonpublicly available information known to concern unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; (B)procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1), 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. . (2)

Pen registers and trap and trace devices

Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended— (A)in subsection (d)— (i)in paragraph (1), by inserting , and if, in exceptional circumstances, minimization procedures are ordered, that the proposed minimization procedures meet the definition of minimization procedures under this title before the period at the end; and (ii)in paragraph (2)(B)— (I)in clause (ii)(II), by striking and after the semicolon; and (II)by adding at the end the following: (iv)if applicable, the minimization procedures be followed; and ; and (B)by adding at the end the following: (h)At or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved under an order or an extension under this section, the judge may assess compliance with any applicable minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated. . (3)

Emergencies

Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended— (A)by redesignating subsection (c) as subsection (d); and (B)by inserting after subsection (b) the following: (c)If the Attorney General authorizes the emergency installation and use of a pen register or trap and trace device under this section, the Attorney General shall require that minimization procedures be followed, if appropriate. . (4)

Use of information

Section 405(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1)) is amended by inserting or minimization procedures required under this title, if ordered or determined appropriate by the Attorney General under section 403(c) after provisions of this section . (c)

Audits

(1)

In general

The Inspector General of the Department of Justice shall perform comprehensive audits of the effectiveness and use, including any improper or illegal use, of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841 et seq.) during the period beginning on January 1, 2007, and ending on December 31, 2013. (2)

Requirements

The audits required under paragraph (1) shall include— (A)an examination of the use of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 for calendar years 2007 through 2013; (B)an examination of the installation and use of a pen register or trap and trace device on emergency bases under section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843); (C)any noteworthy facts or circumstances relating to the use of a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978, including any improper or illegal use of the authority provided under that title; and (D)an examination of the effectiveness of the authority under title IV of the Foreign Intelligence Surveillance Act of 1978 as an investigative tool, including— (i)the importance of the information acquired to the intelligence activities of the Federal Bureau of Investigation or any other department or agency of the Federal Government; (ii)the manner in which the information is collected, retained, analyzed, and disseminated by the Federal Bureau of Investigation, including any direct access to the information provided to any other department, agency, or instrumentality of Federal, State, local, or tribal governments or any private sector entity; (iii)with respect to calendar years 2010 through 2013, an examination of the minimization procedures used in relation to pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 and whether the minimization procedures protect the constitutional rights of United States persons (as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801)); (iv)whether, and how often, the Federal Bureau of Investigation used information acquired under a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978 to produce an analytical intelligence product for distribution within the Federal Bureau of Investigation, to the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))), or to other Federal, State, local, or tribal government departments, agencies, or instrumentalities; and (v)whether, and how often, the Federal Bureau of Investigation provided information acquired under a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978 to law enforcement authorities for use in criminal proceedings. (3)

Submission dates

(A)

Prior years

Not later than December 31, 2010, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under this section for calendar years 2007 through 2009. (B)

Calendar years 2010 and 2011

Not later than December 31, 2012, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under this section for calendar years 2010 and 2011. (C)

Calendar years 2012 and 2013

Not later than December 31, 2014, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under this section for calendar years 2010 and 2011. (4)

Prior notice to Attorney General and Director of National Intelligence; comments

(A)

Notice

Not less than 30 days before the submission of a report under subparagraph (A), (B), or (C) of paragraph (3), the Inspector General of the Department of Justice shall provide the report to the Attorney General and the Director of National Intelligence. (B)

Comments

The Attorney General or the Director of National Intelligence may provide such comments to be included in a report submitted under subparagraph (A), (B), or (C) of paragraph (3) as the Attorney General or the Director of National Intelligence may consider necessary. (5)

Unclassified form

A report submitted under subparagraph (A), (B), or (C) of paragraph (3) and any comments included under paragraph (4)(B) shall be in unclassified form, but may include a classified annex.