[Congressional Record Volume 151, Number 36 (Monday, April 4, 2005)]
[Senate]
[Pages S3154-S3156]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN:
  S. 693. A bill to provide for judicial review of national security 
letters issued to wire and electronic communications service providers; 
to the Committee on the Judiciary.
  Mr. CORNYN. Mr. President, it has been nearly 4 years since the 
terrorist attacks of September 11, 2001. In the days, weeks, and months 
since that day, the American people have braced themselves for the 
possibility of another terrorist attack on our homeland. After all, we 
know all too well that al-Qaida is a stealthy, sophisticated, and 
patient enemy, and that its leadership is extremely motivated to launch 
another devastating attack on American soil and American citizens.
  In fact, outside the United States, al-Qaida and affiliates of al-
Qaida have continued to be enormously active, responsible for numerous 
terrorist attacks on foreign soil in the last few years:
  2001 (Dec.): Man tried to denote shoe bomb on flight from Paris to 
Miami.
  2002 (April): Explosion at historic synagogue in Tunisia left 21 
dead, including 14 German tourists.
  2002 (May): Car exploded outside hotel in Karachi, Pakistan, killing 
14, including 11 French citizens.
  2002 (June): Bomb exploded outside American consulate in Karachi, 
Pakistan, killing 12.
  2002 (Oct.): Boat crashed into oil tanker off Yemen coast, killing 
one.
  2002 (Oct.): Nightclub bombings in Bali, Indonesia, killed 202, 
mostly Australian citizens.
  2002 (Nov.): Suicide attack on a hotel in Mombasa, Kenya, killed 16.
  2003 (May): Suicide bombers killed 34, including 8 Americans, at 
housing compounds for Westerners in Riyadh, Saudi Arabia.
  2003 (May): Four bombs killed 33 people targeting Jewish, Spanish, 
and Belgian sites in Casablanca, Morocco.
  2003 (Aug.): Suicide car-bomb killed 12, injured 150 at Marriott 
Hotel in Jakarta, Indonesia.
  2003 (Nov.): Explosions rocked a Riyadh, Saudi Arabia housing 
compound, killing 17.
  2003 (Nov.): Suicide car-bombers simultaneously attacked two 
synagogues in Istanbul, Turkey, killing 25 and injuring hundreds.
  2003 (Nov.): Truck bombs detonated at London bank and British 
consulate in Istanbul, Turkey, killing 26.
  2004 (March): Ten terrorists bombs exploded almost simultaneously 
during the morning rush hour in Madrid, Spain, killing 202 and injuring 
more than 1,400.
  2004 (May): Terrorists attacked Saudi oil company offices in Khobar, 
Saudi Arabia, killing 22.
  2004 (June): Terrorists kidnapped and executed American Paul Johnson, 
Jr., in Riyadh, Saudi Arabia.
  2004 (Sept.): Car bomb outside the Australian embassy in Jakarta, 
Indonesia, killed nine.
  2004 (Dec.): Terrorists enter the U.S. Consulate in Jiddah, Saudi 
Arabia, killing nine (including 4 attackers).
  It is precisely because al-Qaida is so aggressive, so motivated, and 
so demonstrably hostile to America, that I am so grateful that, to 
date, al-Qaida still has not successfully launched another terrorist 
attack on our own soil. There are undoubtedly many reasons for this. 
First and foremost, I am profoundly thankful to the brave men and women 
of our Armed Forces, who fight the terrorists abroad so that we do not 
have to face them at home. I also firmly believe that our efforts to 
strengthen anti-terrorism and law enforcement tools right here at home 
have much to do with this record of success and peace in our homeland 
to date.
  It is within this important context that a Senate Judiciary Committee 
hearing tomorrow morning will commence a new round of discussions about 
the USA PATRIOT Act. As I explained in an op-ed published in the 
Washington Times just this morning, I welcome that hearing, because the 
American people deserve an honest, responsible, and fair discussion to 
ensure that we are indeed fulfilling our dual responsibilities to 
protect national security and civil liberties alike.
  Unfortunately, the debate about the USA PATRIOT Act has not always 
met that standard. Last fall, just weeks before the Presidential 
election, we even witnessed false reports in newspapers across the 
country that a Federal court had struck down parts of the act as 
unconstitutional. False reports and scare tactics serve no legitimate 
cause and greatly disserve the American people.
  The war on terrorism must be fought aggressively but consistently 
with the protection of civil rights and civil liberties. Whenever real 
civil liberties problems do arise, we must learn about them right away, 
so that we can fix them swiftly.
  It is for precisely this reason that I have long been concerned about 
false allegations of civil rights deprivations. Every false allegation 
undermines every true allegation, and that hurts us all. After all, 
scaring people about false civil rights deprivations unnecessarily 
divides our Nation and makes no one safer. If anything, false claims 
about civil liberties actually make it harder to monitor real civil 
liberties issues in the future--for the same reason that eventually no 
one listened to the fabled little boy who kept ``crying wolf.''

  After several weeks of negotiation, Congress in 2001 enacted the USA 
PATRIOT Act by overwhelming bipartisan margins--98-1 in the Senate and 
357-66 in the House. At the time, Senators on both sides of the aisle 
agreed that the legislation had struck a careful and wise balance 
between national security and civil liberties.
  The record continues to be strong to this day. As Senator Dianne 
Feinstein at a Senate Judiciary Committee oversight hearing during the 
last Congress, ``I have never had a single abuse of the PATRIOT Act 
reported to me. My staff e-mailed the ACLU and asked them for instances 
of actual abuses. They e-mailed back and said they had none.''
  The ACLU did allege in a press release last September that a Federal 
court had struck down parts of the USA PATRIOT Act--calling the 
decision ``a landmark victory against the Ashcroft Justice 
Department.'' See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004). 
The litigation is currently on appeal.
  Newspapers across the country immediately repeated the ACLU's 
message. But as legal experts immediately discovered, there were two 
important problems with the allegation: they were attacking the wrong 
person, and the wrong law.
  In fact, the court had actually struck down a law authored by Senator 
Patrick Leahy during the 1980s. That statute balanced the national 
interest in protecting electronic communications privacy against the 
legitimate needs of national security, by establishing a procedure for 
obtaining electronic communications records in certain national 
security investigations through the use of so-called ``national 
security letters.'' The USA PATRIOT Act amended the law to make clear 
that such letters could be issued in terrorism investigations as well.
  So the statute in question was written by Leahy, not Ashcroft. And it 
was the Electronic Communications Privacy Act of 1986, not the USA 
PATRIOT Act in 2001. Indeed, the USA PATRIOT Act did not change a 
single word of any provision attacked by that court.
  What's more, in 1986, the ACLU endorsed the Electronic Communications 
Privacy Act. And shortly after that law was approved by the Senate on a 
voice vote and the House by unanimous consent, the chief legislative 
counsel of the ACLU called it a ``significant advancement of privacy 
rights of citizens in the age of new communications technology.''
  None of this stopped the ACLU in 2004, however, from charging that 
the court's ruling was ``the first to strike down any of the vast new 
surveillance powers authorized by the Patriot Act.''
  The ACLU has since backed down and admitted that they had attacked 
the wrong law. As ACLU attorney Jameel Jaffer eventually conceded, 
``the provisions that we challenged and that the court objected to were 
in the statute before the Patriot Act was passed. We could have 
raised the same objections before the power was expanded.'' 
Nevertheless, it hurts all of us whenever an allegation about civil 
liberties is discredited--because it makes it that much easier to 
ignore legitimate civil liberties problems that may arise in the 
future.

  It's also worth noting that the primary controversy in the 
litigation--whether judicial review is available to scrutinize the 
issuance of national security letters--was not actually disputed by the 
government. To the contrary, the Justice Department agreed that there 
should be judicial review. The court simply concluded that the

[[Page S3155]]

1986 law was not drafted with sufficient clarity to authorize such 
review.
  Today, I introduce legislation to cure this technical defect, and to 
amend the Electronic Communications Privacy Act to make explicit the 
availability of judicial review to examine national security letters. 
The legislation is entitled the Electronic Communications Privacy 
Judicial Review and Improvement Act of 2005. I ask unanimous consent 
that the text of the legislation, as well as a section-by-section 
analysis of the legislation prepared by my office, be printed in the 
Record.
  I hope that this legislation will be enacted in the same bipartisan 
spirit that put both the Electronic Communications Privacy Act and the 
USA PATRIOT Act on the books. And I hope that future discussions about 
the war on terrorism, civil liberties, and the USA PATRIOT Act will be 
honest, responsible, and fair.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 693

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``The Electronic 
     Communications Privacy Judicial Review and Improvement Act of 
     2005''.

     SEC. 2. JUDICIAL REVIEW.

       (a) In General.--Section 2709(a) of title 18, United States 
     Code, is amended--
       (1) by striking ``A wire or electronic communication 
     service provider'' and inserting the following:
       ``(1) In general.--A wire or electronic communication 
     service provider''; and
       (2) by adding at the end the following:
       ``(2) Judicial review.--A wire or electronic communication 
     service provider who receives a request under subsection (b) 
     may, at any time, seek a court order from an appropriate 
     United States district court to modify or set aside the 
     request. Any such motion shall state the grounds for 
     challenging the request with particularity. The court may 
     modify or set aside the request if compliance would be 
     unreasonable or oppressive.''.
       (b) Nondisclosure.--Section 2709(c) of title 18, United 
     States Code, is amended--
       (1) by striking ``No wire or electronic communication 
     service provider'' and inserting the following:
       ``(1) In general.--No wire or electronic communication 
     service provider''; and
       (2) by adding at the end the following:
       ``(2) Judicial review.--A wire or electronic communication 
     service provider who receives a request under subsection (b) 
     may, at any time, seek a court order from an appropriate 
     United States district court challenging the nondisclosure 
     requirement under paragraph (1). Any such motion shall state 
     the grounds for challenging the nondisclosure requirement 
     with particularity.
       ``(3) Standard of review.--The court may modify or set 
     aside such a nondisclosure requirement if there is no reason 
     to believe that disclosure may endanger the national security 
     of the United States, interfere with a criminal, 
     counterterrorism, or counterintelligence investigation, 
     interfere with diplomatic relations, or endanger the life or 
     physical safety of any person. In reviewing a nondisclosure 
     requirement, the certification by the Government that the 
     disclosure may endanger of the national security of the 
     United States or interfere with diplomatic relations shall be 
     treated as conclusive unless the court finds that the 
     certification was made in bad faith.''.

     SEC. 3. ENFORCEMENT OF NATIONAL SECURITY LETTERS.

       Section 2709(a) of title 18, United States Code, as amended 
     by section 2(a), is further amended by adding at the end the 
     following:
       ``(3) Enforcement of requests.--The Attorney General may 
     seek enforcement of a request under subsection (b) in an 
     appropriate United States district court if a recipient 
     refuses to comply with the request.''.

     SEC. 4. DISCLOSURE OF INFORMATION.

       (a) Secure Proceedings.--Section 2709 of title 18, United 
     States Code, as amended by sections 2 and 3, is further 
     amended--
       (1) in subsection (a), by adding at the end the following:
       ``(4) Secure proceedings.--The disclosure of information in 
     any proceedings under this subsection may be limited 
     consistent with the requirements of the Classified 
     Information Procedures Act (18 U.S.C. App).''; and
       (2) in subsection (c), by adding at the end the following:
       ``(4) Secure proceedings.--The disclosure of information in 
     any proceedings under this subsection may be limited 
     consistent with the requirements of the Classified 
     Information Procedures Act (18 U.S.C. App).''.
       (b) Disclosure to Necessary Persons.--Section 2709(c)(1) of 
     title 18, United States Code, as amended by section 2(b)(1), 
     is further amended--
       (1) by inserting after ``any person'' the following: ``, 
     except for disclosure to an attorney to obtain legal advice 
     regarding the request or to a persons to whom disclosure is 
     necessary in order to comply with the request,''; and
       (2) by adding at the end the following: ``Any attorney or 
     person whose assistance is necessary to comply with the 
     request who is notified of the request also shall not 
     disclose to any person that the Federal Bureau of 
     Investigation has sought or obtained access to information or 
     records under this section.''.

                      Section-by-Section Analysis


 the electronic communications privacy judicial review and improvement 
                              act of 2005

       The Electronic Communications Privacy Act of 1986 strikes a 
     balance between the important national interest in electronic 
     communications privacy and the legitimate needs of national 
     security and law enforcement. It generally forbids 
     nonconsensual, unauthorized disclosures of private electronic 
     communications by communications providers, while authorizing 
     the Federal Bureau of Investigation to issue so-called 
     ``national security letters'' under certain conditions in 
     order to obtain certain kinds of communications records from 
     such providers. The original 1986 law authorized national 
     security letters in foreign counterintelligence 
     investigations; section 505 of the USA PATRIOT Act amended 
     the 1986 Act to explicitly permit the issuance of such 
     letters in international terrorism investigations as well.
       The 1986 Act was authored by U.S. Senator Patrick Leahy and 
     approved by the Senate on a voice vote and the House by 
     unanimous consent. It was endorsed by a number of 
     organizations, including civil liberties and privacy 
     advocates. The ACLU's chief legislative counsel and director 
     of its project on technology and privacy called the 
     legislation a ``significant advancement of privacy rights of 
     citizens in the age of new communications technology,'' 
     according to a December 5, 1986 article in the Christian 
     Science Monitor.
       The national security letter provision of the Electronic 
     Communications Privacy Act of 1986 has recently been 
     challenged in federal court. During the course of the 
     litigation, Justice Department attorneys agreed that there 
     should be judicial review of national security letters, and 
     argued that current law already provides for such review. 
     Nevertheless, last September a federal district court in New 
     York struck down the Electronic Communications Privacy Act as 
     unconstitutional because it does not explicitly authorize 
     judicial review. See Doe v. Ashcroft, 334 F. Supp. 2d 471 
     (S.D.N.Y. 2004). This litigation--which is currently on 
     appeal--presents an important legal dispute concerning 
     whether the Electronic Communications Privacy Act implicitly 
     provides for judicial review of national security letters. It 
     may be helpful for Congress to enact an explicit provision 
     authorizing judicial review, to avoid any ambiguity and to 
     provide clearer guidance to national security letter 
     recipients and parties in litigation in the future.
       Accordingly, the Electronic Communications Privacy Judicial 
     Review and Improvement Act of 2005 responds to the Doe v. 
     Ashcroft litigation by establishing an explicit judicial 
     review provision for national security letters.
       Section 1. Short title.
       Section 2. Judicial review. This provision explicitly 
     authorizes a recipient of a national security letter to seek 
     judicial review in federal court to prevent enforcement of 
     the letter. The provision states that a court may modify or 
     set aside the national security letter if compliance would be 
     unreasonable or oppressive--the same standard that governs 
     grand jury subpoenas. See Federal Rule of Criminal Procedure 
     17(c)(2). Courts have made clear that, under this standard, 
     requests must be relevant to the underlying investigation. 
     See, e.g., U.S. v. R. Enterprises Inc., 498 U.S. 292, 301 
     (1991) (requiring ``reasonable possibility that the category 
     of materials the Government seeks will produce information 
     relevant to the general subject of the grand jury's 
     investigation'').
       This provision also explicitly authorizes a recipient at 
     any time to seek judicial review in federal court to set 
     aside the nondisclosure requirement imposed by the original 
     1986 law. The 1986 Act forbids recipients from disclosing to 
     any person that the FBI has issued the national security 
     letter. This bill provides that a court may modify or set 
     aside the nondisclosure requirement if there is no reason to 
     believe that disclosure may endanger the national security of 
     the United States, interfere with a criminal, 
     counterterrorism, or counterintelligence investigation, 
     interfere with diplomatic relations, or endanger the life or 
     physical safety of any person. The provision also provides 
     that, in reviewing a nondisclosure requirement, the 
     certification by the Government that disclosure may endanger 
     of the national security of the United States or interfere 
     with diplomatic relations shall be treated as conclusive 
     unless the court finds that the certification was made in bad 
     faith.
       Section 3. Enforcement of national security letters. This 
     provision authorizes the Attorney General to seek enforcement 
     of a national security letter in federal court if a recipient 
     refuses to comply.
       Section 4. Disclosure of information. This provision 
     establishes that the judicial review proceedings established 
     by this bill may be secured against disclosure pursuant to 
     the provisions of the Classified Information Procedures Act.
       This provision also makes clear that the nondisclosure 
     requirement of the 1986 law does not forbid conversations 
     with the recipient's attorney to obtain legal advice 
     regarding the request, nor does it forbid conversations with 
     persons to whom disclosure would be necessary to comply with 
     the request. All participants in such conversations

[[Page S3156]]

     are forbidden from disclosing the existence of the national 
     security letter, consistent with the requirements of the 
     original 1986 law.
                                 ______