1.This Act may be cited as the
USA PATRIOT Act Sunset Extension Act
of 2009
.
2.
(a)Sections 206 and
215 sunset
(1)Section 102(b)(1) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1805 note, 50 U.S.C.
1861 note, and 50 U.S.C. 1862 note) is amended by striking 2009
and inserting 2013
.
(2)
(A)Section 601(a)(1)(D)
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1)(D))
is amended by striking section 501;
and inserting section
502 or under section 501 pursuant to section 102(b)(2) the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1861
note);
.
(B)Application
under section 404 of the FISA Amendments Act of 2008Section
404(b)(4)(A) of the FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat.
2477) is amended by striking the period at the end and inserting “, except that
paragraph (1)(D) of such section 601(a) shall be applied as if it read as
follows:
‘(D)access to records
under section 502 or under section 501 pursuant to section 102(b)(2) the USA
PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50
U.S.C. 1861 note);’.”.
(C)The amendments made by this paragraph shall take effect on
December 31, 2013.
(b)Extension of
sunset relating to individual terrorists as agents of foreign powers
(1)Section 6001(b) of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108–458; 50 U.S.C. 1801 note) is amended to
read as follows:
(b)
(1)Subparagraph
(C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801(b)(1)), as added by subsection (a), is repealed effective
December 31, 2013.
(2)Notwithstanding paragraph (1), subparagraph (C) of
section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(1)) shall continue to apply after December 31, 2013, with
respect to any particular foreign intelligence investigation or with respect to
any particular offense or potential offense that began or occurred before
December 31,
2013.
.
(2)
(A)Section 601(a)(2) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1871(a)(2)) is amended by striking the
semicolon at the end and inserting pursuant to subsection (b)(2) of
section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108–458; 50 U.S.C. 1801 note);
.
(B)The amendment made by subparagraph (A) shall take effect on
December 31, 2013.
(c)National
security letters
(1)Effective on December 31, 2013, the following provisions
of law are repealed:
(A)Section 2709 of
title 18, United States Code.
(B)Section 1114(a)(5)
of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)).
(C)Subsections (a)
and (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C.
1681u).
(D)Section 627 of the
Fair Credit Reporting Act (15 U.S.C. 1681v).
(E)Section 802 of the
National Security Act of 1947 (50 U.S.C. 436).
(2)Notwithstanding paragraph (1), the
provisions of law referred to in paragraph (1) shall continue to apply after
December 31, 2013, with respect to any particular foreign intelligence
investigation or with respect to any particular offense or potential offense
that began or occurred before December 31, 2013.
(3)Technical and
conforming amendments
(A)Title 18, United States Code, is amended—
(i)in the table of
sections for chapter 121, by striking the item relating to section 2709;
(ii)by striking
section 3511; and
(iii)in the table of
sections for chapter 223, by striking the item relating to section 3511.
(B)Fair Credit
Reporting ActThe Fair Credit Reporting Act (15 U.S.C. 1681) is
amended—
(i)in section 626 (15
U.S.C. 1681u)—
(I)in subsection
(d)(1), by striking the identity of financial institutions or a consumer
report respecting any consumer under subsection (a), (b), or (c)
and
inserting a consumer report respecting any consumer under subsection
(c)
;
(II)in subsection
(h)(1), by striking subsections (a), (b), and (c)
and inserting
subsection (c)
; and
(ii)in the table of
sections, by striking the item relating to section 627.
(C)National
Security Act of 1947The National Security Act of 1947 (50 U.S.C.
401 et seq.) is amended—
(i)in section 507(b)
(50 U.S.C. 415b(b))—
(I)by striking
paragraph (5); and
(II)by redesignating
paragraph (6) as paragraph (5); and
(ii)in the table of
contents, by striking the item relating to section 802.
(D)The amendments made by this paragraph shall take effect on
December 31, 2013.
3.Factual basis for
and issuance of orders for access to tangible things
(a)Section 501 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is
amended—
(1)in the section
heading, by striking certain
business records
and inserting tangible things
;
(2)in subsection (b)(2), by striking
subparagraphs (A) and (B) and inserting the following:
(A)a statement of
facts showing that there are reasonable grounds to believe that the records or
other things sought—
(i)are relevant to an
authorized investigation (other than a threat assessment) conducted in
accordance with subsection (a)(2) to obtain foreign intelligence information
not concerning a United States person or to protect against international
terrorism or clandestine intelligence activities; and
(ii)(I)pertain to a foreign
power or an agent of a foreign power;
(II)are relevant to
the activities of a suspected agent of a foreign power who is the subject of
such authorized investigation; or
(III)pertain to an
individual in contact with, or known to, a suspected agent of a foreign power;
and
(B)a statement of
proposed minimization procedures.
;
and
(3)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 ; and
;
and
(iii)by adding at the
end the following:
(F)shall direct that
the minimization procedures be
followed.
.
(b)Technical and
conforming amendments
(1)Title V of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861 et seq.) is amended in the title heading by striking
certain business
records
and inserting tangible
things
.
(2)The table of contents in the first section of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended by striking the items relating to title V and section 501 and inserting
the following:
TITLE V—Access to tangible things for
foreign intelligence purposes
Sec. 501. Access to tangible things for
foreign intelligence purposes and international terrorism
investigations.
.
4.Factual basis for
and issuance of orders for pen registers and trap and trace devices for foreign
intelligence purposes
(a)
(1)Section 402(c) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended—
(A)in paragraph (1), by striking
and
at the end; and
(B)by striking paragraph (2) and inserting the
following:
(2)a statement of facts showing that there are
reasonable grounds to believe that the information likely to be
obtained—
(A)is relevant to an
authorized investigation (other than a threat assessment) conducted in
accordance with subsection (a)(1) to obtain foreign intelligence information
not concerning a United States person or to protect against international
terrorism or clandestine intelligence activities; and
(B)(i)pertains to a foreign
power or an agent of a foreign power;
(ii)is relevant to
the activities of a suspected agent of a foreign power who is the subject of
such authorized investigation; or
(iii)pertains to an
individual in contact with, or known to, a suspected agent of a foreign power;
and
(3)a statement of proposed minimization
procedures.
.
(2)
(A)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 acquisition
and 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;
(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.
.
(B)Pen registers and trap and trace
devicesSection 402 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is
amended—
(i)in subsection (d)—
(I)in paragraph (1), by inserting , and
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)—
- (aa)in clause (ii)(II), by striking
and
after the semicolon; and
- (bb)by adding at the end the following:
(iv)the minimization procedures be followed;
and
;
and
(ii)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 the minimization procedures by reviewing the
circumstances under which information concerning United States persons was
acquired, retained, or
disseminated.
.
(C)Section 403 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1843) is amended—
(i)by redesignating subsection (c) as (d);
and
(ii)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 the minimization
procedures required by this title for the issuance of a judicial order be
followed.
.
(D)Section 405(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1845(a)) is amended by striking
provisions of
and inserting minimization procedures
required under
.
5.Limitations on
disclosure of national security letters
(a)Section 2709 of title 18, United States Code, is amended
by striking subsection (c) and inserting the following:
(c)Prohibition of
certain disclosure
(1)
(A)If a certification is issued under subparagraph (B) and
notice of the right to judicial review under paragraph (4) 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 the particular information specified in the certification during the
time period to which the certification applies, which may be not longer than 1
year.
(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, 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)
(A)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)Nondisclosure
requirementA 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.
(C)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)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 in a Bureau field office, may extend
a nondisclosure requirement for additional periods of not longer than 1 year
if, at the time of each extension, a new certification is made under paragraph
(1)(B) and notice is provided to the recipient of the applicable request that
the nondisclosure requirement has been extended and the recipient has the right
to judicial review of the nondisclosure requirement.
(4)
(A)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 and any extension thereof.
(B)
(i)A request under subsection (a) shall state that if the
recipient wishes to have a court review a nondisclosure requirement, the
recipient shall notify the Government not later than 21 days after the date of
receipt of the request.
(ii)A
notice that the applicable nondisclosure requirement has been extended under
paragraph (3) shall state that if the recipient wishes to have a court review
the nondisclosure requirement, the recipient shall notify the Government not
later than 21 days after the date of receipt of the notice.
(C)Initiation of
proceedingsIf 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.
(5)If
the facts supporting a nondisclosure requirement cease to exist prior to the
applicable time period of the nondisclosure requirement, 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 reportsSection 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)
(A)If a certification is issued under subparagraph (B) and
notice of the right to judicial review under paragraph (4) 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
to any person the particular information specified in the certification during
the time period to which the certification applies, which may be not longer
than 1 year.
(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, 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)
(A)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)Nondisclosure
requirementA 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.
(C)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)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 in a Bureau field office, may extend
a nondisclosure requirement for additional periods of not longer than 1 year
if, at the time of each extension, a new certification is made under paragraph
(1)(B) and notice is provided to the recipient of the applicable request or
order that the nondisclosure requirement has been extended and the recipient
has the right to judicial review of the nondisclosure requirement.
(4)
(A)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 and any extension thereof.
(B)
(i)A request or order under subsection (a), (b), or (c)
shall state that if the recipient wishes to have a court review a nondisclosure
requirement, the recipient shall notify the Government not later than 21 days
after the date of receipt of the request or order.
(ii)A
notice that the applicable nondisclosure requirement has been extended under
paragraph (3) shall state that if the recipient wishes to have a court review
the nondisclosure requirement, the recipient shall notify the Government not
later than 21 days after the date of receipt of the notice.
(C)Initiation of
proceedingsIf 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.
(5)If
the facts supporting a nondisclosure requirement cease to exist prior to the
applicable time period of the nondisclosure requirement, 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 purposesSection 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)
(A)If a certification is issued under subparagraph (B) and
notice of the right to judicial review under paragraph (4) is provided, no
consumer reporting agency, or officer, employee, or agent thereof, that
receives a request under subsection (a), shall disclose to any person the
particular information specified in the certification during the time period to
which the certification applies, which may be not longer than 1 year.
(B)The
requirements of subparagraph (A) shall apply if the head of a government agency
authorized to conduct investigations of 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)
(A)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 intelligence or counterintelligence activities or analysis
related to international terrorism, or a designee.
(B)Nondisclosure
requirementA 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.
(C)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)The
head of a government agency authorized to conduct investigations of
intelligence or counterintelligence activities or analysis related to
international terrorism, or a designee, may extend a nondisclosure requirement
for additional periods of not longer than 1 year if, at the time of each
extension, a new certification is made under paragraph (1)(B) and notice is
provided to the recipient of the applicable request that the nondisclosure
requirement has been extended and the recipient has the right to judicial
review of the nondisclosure requirement.
(4)
(A)A consumer reporting agency that receives a request under
subsection (a) shall have the right to judicial review of any applicable
nondisclosure requirement and any extension thereof.
(B)
(i)A request under subsection (a) shall state that if the
recipient wishes to have a court review a nondisclosure requirement, the
recipient shall notify the Government not later than 21 days after the date of
receipt of the request.
(ii)A
notice that the applicable nondisclosure requirement has been extended under
paragraph (3) shall state that if the recipient wishes to have a court review
the nondisclosure requirement, the recipient shall notify the Government not
later than 21 days after the date of receipt of the notice.
(C)Initiation of
proceedingsIf 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.
(5)If
the facts supporting a nondisclosure requirement cease to exist prior to the
applicable time period of the nondisclosure requirement, an appropriate
official of the government agency authorized to conduct investigations of
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)Section 1114(a)(5) of the Right to Financial Privacy Act
(12 U.S.C. 3414(a)(5)) is amended by striking subparagraph (D) and inserting
the following:
(D)Prohibition of
certain disclosure
(i)
(I)If a certification is issued under subclause (II) and
notice of the right to judicial review under clause (iv) is provided, no
financial institution, or officer, employee, or agent thereof, that receives a
request under subparagraph (A), shall disclose to any person the particular
information specified in the certification during the time period to which the
certification applies, which may be not longer than 1 year.
(II)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)
(I)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)Nondisclosure
requirementA 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.
(III)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)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 in a Bureau field office, may extend
a nondisclosure requirement for additional periods of not longer than 1 year
if, at the time of each extension, a new certification is made under clause
(i)(II) and notice is provided to the recipient of the applicable request that
the nondisclosure requirement has been extended and the recipient has the right
to judicial review of the nondisclosure requirement.
(iv)
(I)A financial institution that receives a request under
subparagraph (A) shall have the right to judicial review of any applicable
nondisclosure requirement and any extension thereof.
(II)
- (aa)A request under subparagraph (A) shall state that if the
recipient wishes to have a court review a nondisclosure requirement, the
recipient shall notify the Government not later than 21 days after the date of
receipt of the request.
- (bb)A
notice that the applicable nondisclosure requirement has been extended under
clause (iii) shall state that if the recipient wishes to have a court review
the nondisclosure requirement, the recipient shall notify the Government not
later than 21 days after the date of receipt of the notice.
(III)Initiation of
proceedingsIf 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.
(v)If
the facts supporting a nondisclosure requirement cease to exist prior to the
applicable time period of the nondisclosure requirement, 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 agenciesSection 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)
(A)If a certification is issued under subparagraph (B) and
notice of the right to judicial review under paragraph (4) 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 the
particular information specified in the certification during the time period to
which the certification applies, which may be not longer than 1 year.
(B)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)
(A)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)Nondisclosure
requirementA 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.
(C)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)The
head of an authorized investigative agency described in subsection (a), or a
designee, may extend a nondisclosure requirement for additional periods of not
longer than 1 year if, at the time of each extension, a new certification is
made under paragraph (1)(B) and notice is provided to the recipient of the
applicable request that the nondisclosure requirement has been extended and the
recipient has the right to judicial review of the nondisclosure
requirement.
(4)
(A)A governmental or private entity that receives a request
under subsection (a) shall have the right to judicial review of any applicable
nondisclosure requirement and any extension thereof.
(B)
(i)A request under subsection (a) shall state that if the
recipient wishes to have a court review a nondisclosure requirement, the
recipient shall notify the Government not later than 21 days after the date of
receipt of the request.
(ii)A
notice that the applicable nondisclosure requirement has been extended under
paragraph (3) shall state that if the recipient wishes to have a court review
the nondisclosure requirement, the recipient shall notify the Government not
later than 21 days after the date of receipt of the notice.
(C)Initiation of
proceedingsIf 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.
(5)If
the facts supporting a nondisclosure requirement cease to exist prior to the
applicable time period of the nondisclosure requirement, 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.Judicial review
of FISA orders and national security letters
(a)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)by striking
a production order
and inserting a production order or
nondisclosure order
; and
(ii)by striking
Not less than 1 year
and all that follows;
(B)in clause (ii), 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 lettersSection 3511(b) of title 18, United
States Code, is amended to read as follows:
(b)
(1)
(A)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 (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, the recipient shall notify
the Government not later than 21 days after the date of receipt of the request
or of notice that an applicable nondisclosure requirement has been
extended.
(B)Not
later than 21 days after the date of receipt of a notification under
subparagraph (A), the Government shall apply for an order prohibiting the
disclosure of particular information about 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)A
district court of the United States that receives an application under
subparagraph (B) should rule expeditiously, and may issue a nondisclosure order
for a period of not longer than 1 year, unless the facts justify a longer
period of nondisclosure.
(D)If
a district court of the United States rejects an application for a
nondisclosure order or extension thereof, the nondisclosure requirement shall
no longer be in effect.
(2)An application for a nondisclosure order or extension
thereof under this subsection shall include—
(A)a statement of the
facts indicating 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; and
(B)the time period
during which the Government believes the nondisclosure requirement should
apply.
(3)A
district court of the United States may issue a nondisclosure requirement order
or extension thereof under this subsection if the court determines 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.
(4)A
nondisclosure order under this subsection may be renewed for additional periods
of not longer than 1 year, unless the facts of the case justify a longer period
of nondisclosure, upon submission of an application meeting the requirements of
paragraph (2), and a determination by the court that the circumstances
described in paragraph (3) continue to
exist.
.
(c)Section
501(g) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g))
is amended—
(1)in paragraph (1),
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
acquired, retained, or disseminated.
; and
(2)in paragraph
(2)(A), by inserting acquisition and
after to minimize
the
.
7.Certification for
access to telephone toll and transactional records
(a)Section 2709(b)(1) of
title 18, United States Code, is amended—
(1)by striking certifies in
writing
and inserting provides a written certification by the
Director (or a designee)
; and
(2)by inserting that includes a
statement of facts showing that there are reasonable grounds to believe
before that the name,
.
(b)Identity of
financial institutions and credit reportsSection 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u) is amended—
(1)in subsection (a),
by striking has determined in writing, that such information is sought
for
and inserting provides to the consumer reporting agency a
written determination that includes a statement of facts showing that there are
reasonable grounds to believe that such information is relevant to
;
and
(2)in subsection (b),
by striking has determined in writing that such information is sought
for
and inserting provides to the consumer reporting agency a
written determination that includes a statement of facts showing that there are
reasonable grounds to believe that such information is relevant
to
.
(c)Disclosures to
Governmental agencies for counterterrorism purposesSection
627(a) of the Fair Credit Reporting Act (15 U.S.C. 1681v(a)) is amended by
inserting that includes a statement of facts showing that there are
reasonable grounds to believe
before that such information is
necessary for
.
(d)Section 1114(a)(5)(A) of the Right to Financial Privacy
Act (12 U.S.C. 3414(a)(5)(A)) is amended—
(1)by striking certifies in
writing
and inserting provides a written certification by the
Director (or a designee)
; and
(2)by striking that such records are
sought for foreign counter intelligence purposes
and inserting
that includes a statement of facts showing that there are reasonable
grounds to believe that such records are relevant to a foreign
counterintelligence investigation
.
(e)Requests by
authorized investigative agenciesSection 802(a)(3) of the
National Security Act of 1947 (50 U.S.C. 436(a)(3)), 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)shall include a
statement of facts showing that there are reasonable grounds to believe, based
on credible information, that the person is, or may be, disclosing classified
information in an unauthorized manner to a foreign power or agent of a foreign
power;
.
8.Public reporting
on National Security LettersSection 118(c) of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (18 U.S.C. 3511 note) is
amended—
(1)in paragraph (1)—
(A)in the matter preceding subparagraph (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)
(A)Except as provided in subparagraph (B), each report
required under this subsection shall include the total number of requests
described in paragraph (1) requiring disclosure of information
concerning—
(i)United States
persons;
(ii)persons who are
not United States persons;
(iii)persons who are
the subjects of authorized national security investigations; or
(iv)persons who are
not the subjects of authorized national security investigations.
(B)With
respect to the number of requests for subscriber information under section 2709
of title 18, United States Code, a report required under this subsection need
not provide information separated into each of the categories described in
subparagraph
(A).
.
9.Public reporting
on the Foreign Intelligence Surveillance ActSection 601 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1871) is amended—
(1)by redesignating subsections (b) through
(e) as subsections (c) through (f), respectively;
(2)by inserting after subsection (a) the
following:
(b)The Attorney General
shall make publicly available the portion of each report under subsection (a)
relating to paragraphs (1) and (2) of subsection
(a).
;
and
(3)in subsection (e),
as so redesignated, by striking subsection (c)
and inserting
subsection (d)
.
10.
(a)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)—
(A)in paragraph (1),
by striking 2006
and inserting 2012
; and
(B)in paragraph
(5)(C), by striking calendar year 2006
and inserting each
of calendar years 2006 through 2012
;
(2)in subsection (c),
by adding at the end the following:
(3)Calendar years
2007 and 2008Not 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 and 2008.
(4)Calendar years
2009 through 2012Not later than December 31, 2011, and every
year thereafter through 2013, 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 the
previous calendar year.
;
(3)in subsection
(d)—
(A)in paragraph (1),
by striking or (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
; and
(B)in paragraph (2),
by striking and (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
; and
(4)in subsection (e),
by striking and (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
.
(b)National
security lettersSection 119 of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109–177; 120 Stat. 219) is
amended—
(1)in subsection
(b)(1), by striking 2006
and inserting
2012
;
(2)in subsection (c),
by adding at the end the following:
(3)Calendar years
2007 and 2008Not 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 and 2008.
(4)Calendar years
2009 through 2012Not later than December 31, 2011, and every
year thereafter through 2013, 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 the
previous calendar year.
;
(3)in subsection
(d)—
(A)in paragraph (1),
by striking or (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
; and
(B)in paragraph (2),
by striking or (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
; and
(4)in subsection (e),
by striking or (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
.
(c)Pen registers
and trap and trace devices
(1)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, 2012.
(2)The
audits required under paragraph (1) shall include—
(A)an examination of
each instance in which the Attorney General or any other attorney for the
Government submitted an application for an order or extension of an order under
title IV of the Foreign Intelligence Surveillance Act of 1978, including
whether the court granted, modified, or denied the application (including an
examination of the basis for any modification or denial);
(B)an examination of
each instance in which the Attorney General authorized the installation and use
of a pen register or trap and trace device on an emergency basis under section
403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1843);
(C)whether the
Federal Bureau of Investigation requested that the Department of Justice submit
an application for an order or extension of an order under title IV of the
Foreign Intelligence Surveillance Act of 1978 and the request was not submitted
to the court (including an examination of the basis for not submitting the
application);
(D)whether
bureaucratic or procedural impediments to the use of pen registers and trap and
trace devices under title IV of the Foreign Intelligence Surveillance Act of
1978 prevent the Federal Bureau of Investigation from taking full advantage of
the authorities provided under that title;
(E)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
(F)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 2012, 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;
(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)
(A)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 thorough 2009.
(B)Calendar years
2010 through 2012Not later than December 31, 2011, and every
year thereafter through 2013, 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 the
previous calendar year.
(4)Prior notice to
Attorney General and Director of National Intelligence; comments
(A)Not
less than 30 days before the submission of a report under subparagraph (A) or
(B) 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)The
Attorney General or the Director of National Intelligence may provide such
comments to be included in a report submitted under subparagraph (A) or (B) of
paragraph (3) as the Attorney General or the Director of National Intelligence
may consider necessary.
(5)A report submitted under subparagraph (A) or (B) of
paragraph (3) and any comments included under paragraph (4)(B) shall be in
unclassified form, but may include a classified annex.
1.This Act may be cited as the
USA PATRIOT Act Sunset Extension Act
of 2009
.
2.
(a)Sections 206 and 215
sunset
(1)Section 102(b)(1) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1805 note, 50 U.S.C.
1861 note, and 50 U.S.C. 1862 note) is amended by striking 2009
and inserting 2013
.
(2)
(A)The Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by
section 3 of this Act, is amended—
(i)in the table of
contents in the first section, by striking the items relating to title V and
sections 501, 502, and 503 and inserting the following:
TITLE V—Access to certain business records for
foreign intelligence purposes
Sec. 501. Definitions.
Sec. 502. Access to certain business records
for foreign intelligence and international terrorism
investigations.
;
(ii)in title V (50 U.S.C.
1861 et seq.)—
(I)in the title
heading, by striking and other tangible things
;
and
(II)by striking
section 503; and
(iii)in section 601(a)(1)(D) (50 U.S.C.
1871(a)(1)(D)), by striking section 501;
and inserting
section 502 or under section 501 pursuant to section 102(b)(2) of the
USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50
U.S.C. 1861 note);
.
(B)Application under
section 404 of the FISA Amendments Act of 2008Section
404(b)(4)(A) of the FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat.
2477) is amended by striking the period at the end and inserting “, except that
paragraph (1)(D) of such section 601(a) shall be applied as if it read as
follows:
‘(D)access to records under
section 502 or under section 501 pursuant to section 102(b)(2) of the USA
PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50
U.S.C. 1861
note);’.
.
(C)The amendments made by this paragraph shall take effect on
December 31, 2013.
(b)Extension of sunset
relating to individual terrorists as agents of foreign powers
(1)Section 6001(b) of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108–458; 50 U.S.C. 1801 note) is amended to
read as follows:
(b)
(1)Subparagraph
(C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801(b)(1)), as added by subsection (a), is repealed effective
December 31, 2013.
(2)Notwithstanding paragraph (1), subparagraph (C) of
section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801(b)(1)) shall continue to apply on and after December 31, 2013, with
respect to any particular foreign intelligence investigation or with respect to
any particular offense or potential offense that began or occurred before
December 31,
2013.
.
(2)
(A)Section 601(a)(2) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1871(a)(2)) is amended by striking the
semicolon at the end and inserting pursuant to subsection (b)(2) of
section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108–458; 50 U.S.C. 1801 note);
.
(B)The amendment made by subparagraph (A) shall take effect on
December 31, 2013.
(c)National security
letters
(1)Effective
on December 31, 2013—
(A)section 2709 of title 18,
United States Code, is amended to read as such provision read on October 25,
2001;
(B)section 1114(a)(5) of the
Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)) is amended to
read as such provision read on October 25, 2001;
(C)subsections (a) and (b)
of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) are amended
to read as subsections (a) and (b), respectively, of section 624 of such Act
read on October 25, 2001;
(D)section 627 of the Fair
Credit Reporting Act (15 U.S.C. 1681v) is repealed; and
(E)section 802 of the
National Security Act of 1947 (50 U.S.C. 436) is amended to read as such
provision read on October 25, 2001.
(2)Notwithstanding paragraph (1), the
provisions of law referred to in paragraph (1), as in effect on December 30,
2013, shall continue to apply on and after December 31, 2013, with respect to
any particular foreign intelligence investigation or with respect to any
particular offense or potential offense that began or occurred before December
31, 2013.
(3)Technical and
conforming amendmentsEffective December 31, 2013—
(A)section 3511 of
title 18, United States Code, is amended—
(i)in subsections
(a), (c), and (d), by striking or 627(a)
each place it appears;
and
(ii)in subsection (b)(1)(A),
as amended by section 6(b) of this Act, by striking section 626 or 627
of the Fair Credit Reporting Act (15 U.S.C. 1681u and 1681v)
and
inserting section 626 of the Fair Credit Reporting Act (15 U.S.C.
1681u)
;
(B)section 118(c)
of the USA PATRIOT Improvement and Reauthorization Act of 2005 (18 U.S.C. 3511
note) is amended—
(i)in subparagraph
(C), by adding and
at the end;
(ii)in subparagraph (D), by
striking ; and
and inserting a period; and
(iii)by striking
subparagraph (E); and
(C)the table of sections for
the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) is amended by striking
the item relating to section 627.
3.Orders for access to
certain business records and tangible things
(a)Section 501 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is
amended—
(1)in the section heading,
by inserting and other
tangible things
after certain business
records
;
(2)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:
(B)if the records sought are
the circulation records or patron lists of a library (as defined in section
213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1))), a
statement of facts showing that there are reasonable grounds to believe that
the records sought—
(i)are relevant to an
authorized investigation (other than a threat assessment) conducted in
accordance with subsection (a)(2) to obtain foreign intelligence information
not concerning a United States person or to protect against international
terrorism or clandestine intelligence activities; and
(ii)(I)pertain to a foreign
power or an agent of a foreign power;
(II)are relevant to the
activities of a suspected agent of a foreign power who is the subject of such
authorized investigation; or
(III)pertain to an
individual in contact with, or known to, a suspected agent of a foreign power;
and
(C)a statement of proposed
minimization procedures.
;
and
(3)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 ; and
; and
(iii)by adding at the end
the following:
(F)shall direct that the
minimization procedures be
followed.
.
(b)Technical and
conforming amendments
(1)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 terms Attorney
General, foreign intelligence information,
international terrorism, person, United
States, and United States person have the meanings given
such terms in section
101.
.
(2)Title V of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861 et seq.) is amended in the title heading by inserting
and other tangible
things
after certain business records
.
(3)The table of contents in the first section of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended—
(A)by striking the items
relating to title V and section 501 and inserting the following:
TITLE V—Access to certain business records and
other tangible things for foreign intelligence purposes
Sec. 501. Access to certain business records
and other tangible things for foreign intelligence purposes and international
terrorism investigations.
;
and
(B)by inserting after the
item relating to section 502 the following:
Sec. 503.
Definitions.
.
4.Orders for pen registers
and trap and trace devices for foreign intelligence purposes
(a)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)
(1)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 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
devicesSection 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)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)Section 405(a)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1)) is amended by
striking provisions of this section
and inserting
minimization procedures required under this title
.
5.Limitations on
disclosure of national security letters
(a)Section 2709 of title 18, United States Code, is amended
by striking subsection (c) and inserting the following:
(c)Prohibition of certain
disclosure
(1)
(A)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)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)
(A)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
complianceUpon 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
requirementA 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)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)
(A)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)A
request under subsection (a) shall state that if the recipient wishes to have a
court review a nondisclosure requirement, the recipient shall notify the
Government.
(C)Initiation of
proceedingsIf 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)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 reportsSection 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)
(A)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)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)
(A)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
complianceUpon 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
requirementA 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)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)
(A)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)A
request or order under subsection (a), (b), or (c) shall state that if the
recipient wishes to have a court review a nondisclosure requirement, the
recipient shall notify the Government.
(C)Initiation of
proceedingsIf 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)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 purposesSection 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)
(A)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)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)
(A)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
complianceUpon 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
requirementA 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)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)
(A)A consumer reporting agency that receives a request under
subsection (a) shall have the right to judicial review of any applicable
nondisclosure requirement.
(B)A
request under subsection (a) shall state that if the recipient wishes to have a
court review a nondisclosure requirement, the recipient shall notify the
government.
(C)Initiation of
proceedingsIf 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)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)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)
(I)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)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)
(I)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
complianceUpon 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
requirementA 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)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)
(I)A financial institution that receives a request under
subparagraph (A) shall have the right to judicial review of any applicable
nondisclosure requirement.
(II)A
request under subparagraph (A) shall state that if the recipient wishes to have
a court review a nondisclosure requirement, the recipient shall notify the
Government.
(III)Initiation of
proceedingsIf 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)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 agenciesSection 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)
(A)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)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)
(A)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
complianceUpon 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
requirementA 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)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)
(A)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)A
request under subsection (a) shall state that if the recipient wishes to have a
court review a nondisclosure requirement, the recipient shall notify the
Government.
(C)Initiation of
proceedingsIf 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)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.Judicial review of FISA
orders and national security letters
(a)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)by striking a
production order
and inserting a production order or
nondisclosure order
; and
(ii)by striking Not
less than 1 year
and all that follows; and
(B)in clause (ii), 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 lettersSection 3511(b) of title 18, United
States Code, is amended to read as follows:
(b)
(1)
(A)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)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)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)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)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)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.
.
7.Certification for access
to telephone toll and transactional records
(a)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)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 reportsSection 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)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 purposesSection
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)The
certification
;
and
(3)by adding at the end the
following:
(2)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)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 agenciesSection 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
investigationsSection 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)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))
.
8.Public reporting on
National Security LettersSection 118(c) of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (18 U.S.C. 3511 note) is
amended—
(1)in paragraph (1)—
(A)in the matter preceding subparagraph (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)
(A)Except as provided in subparagraph (B), each report
required under this subsection shall include the total number of requests
described in paragraph (1) requiring disclosure of information
concerning—
(i)United States
persons;
(ii)persons who are not
United States persons;
(iii)persons who are the
subjects of authorized national security investigations; or
(iv)persons who are not the
subjects of authorized national security investigations.
(B)With
respect to the number of requests for subscriber information under section 2709
of title 18, United States Code, a report required under this subsection need
not provide information separated into each of the categories described in
subparagraph
(A).
.
9.Public reporting on the
Foreign Intelligence Surveillance ActSection 601 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1871) is amended—
(1)by redesignating subsections (b) through
(e) as subsections (c) through (f), respectively;
(2)by inserting after subsection (a) the
following:
(b)The Attorney General
shall make publicly available the portion of each report under subsection (a)
relating to paragraphs (1) and (2) of subsection
(a).
;
and
(3)in subsection (e), as so
redesignated, by striking subsection (c)
and inserting
subsection (d)
.
10.
(a)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)—
(A)in paragraph (1), by
striking 2006
and inserting 2011
; and
(B)in paragraph (5)(C), by
striking calendar year 2006
and inserting each of
calendar years 2006 through 2011
;
(2)in subsection (c), by
adding at the end the following:
(3)Calendar years 2007,
2008, and 2009Not later than June 30, 2011, 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
2011Not 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.
;
(3)in subsection (d)—
(A)in paragraph (1), by
striking or (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
; and
(B)in paragraph (2), by
striking and (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
; and
(4)in subsection (e), by
striking and (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
.
(b)National security
lettersSection 119 of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109–177; 120 Stat. 219) is
amended—
(1)in subsection (b)(1), by
striking 2006
and inserting 2011
;
(2)in subsection (c), by
adding at the end the following:
(3)Calendar years 2007,
2008, and 2009Not later than June 30, 2011, 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
2011Not 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.
;
(3)in subsection (d)—
(A)in paragraph (1), by
striking or (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
; and
(B)in paragraph (2), by
striking or (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
; and
(4)in subsection (e), by
striking or (c)(2)
and inserting (c)(2), (c)(3), or
(c)(4)
.
(c)Pen registers and trap
and trace devices
(1)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, 2011.
(2)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
2011;
(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 and 2011, 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)
(A)Not later than June 30, 2011, 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
2011Not later than December 21, 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.
(4)Prior notice to
Attorney General and Director of National Intelligence; comments
(A)Not
less than 30 days before the submission of a report under subparagraph (A) or
(B) 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)The
Attorney General or the Director of National Intelligence may provide such
comments to be included in a report submitted under subparagraph (A) or (B) of
paragraph (3) as the Attorney General or the Director of National Intelligence
may consider necessary.
(5)A report submitted under subparagraph (A) or (B) of
paragraph (3) and any comments included under paragraph (4)(B) shall be in
unclassified form, but may include a classified annex.
11.Delayed notice search
warrantsSection 3103a(b)(3)
of title 18, United States Code, is amended by striking 30 days
and inserting 7 days
.
12.
(a)Not later than 180 days after the date of enactment of
this Act, the Attorney General shall—
(1)establish minimization
procedures governing the acquisition, 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; and
(2)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 copy of the minimization procedures
established under paragraph (1).
(b)In
this section—
(1)the term
minimization procedures means—
(A)specific procedures that
are reasonably designed in light of the purpose and technique of a national
security letter, to minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information concerning unconsenting
United States persons (as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801)) 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) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(e)(1))) shall not be disseminated in a
manner that identifies any United States person, without the consent of the
United States person, unless the identity of the United States person 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; and
(2)the term national
security letter means a national security letter 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).
October 13, 2009
Reported with an amendment