[Congressional Record Volume 155, Number 152 (Tuesday, October 20, 2009)]
[Extensions of Remarks]
[Pages E2581-E2582]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    SECTION BY SECTION ANALYSIS--USA PATRIOT AMENDMENTS ACT OF 2009

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                       Tuesday, October 20, 2009

  Mr. CONYERS. Madam Speaker, I submit the following:
       Sec. 1. Short title and table of contents. Section 1 names 
     this Act the ``USA PATRIOT Amendments Act of 2009'' and 
     provides a table of contents for the entire bill.


              Title I--USA PATRIOT Act Related Amendments

       Sec. 101. Roving Wiretaps. Sec. 101 clarifies that when the 
     government only provides a description of the target of 
     surveillance for purposes of obtaining a warrant (whether or 
     not that warrant is for a regular or roving FISA warrant), 
     that description must be sufficient to allow a court to 
     determine that the target is a single individual.
       Sec. 102. Extension of Sunset of Sections 206 and 215 of 
     USA PATRIOT Act. Sec. 102 extends the sunset dates of roving 
     wiretaps and FISA business records to December 31, 2013.
       Sec. 103. Access to Certain Tangible Things under section 
     501 of the Foreign Intelligence Surveillance Act of 1978. 
     Sec. 103 (Sec. 215 tangible things) requires a statement of 
     specific and articulable facts showing that the tangible 
     things sought are relevant to an authorized investigation, 
     other than a threat assessment. The ``specific and 
     articulable'' language is not present in the current law, and 
     is a more exacting standard for government to meet.
       This section also retains the concept that certain types of 
     records are ``presumptively relevant'' to a counterterrorism 
     or counterintelligence related investigation (assuming an 
     appropriate statement containing specific and articulable 
     facts). The retention of the ``presumptive relevance'' for 
     documents pertaining to foreign powers or agents of a foreign 
     power accomplishes two important goals. First, it puts the 
     government and a court on notice that these types of records 
     are the type of documents that Congress generally expects the 
     government will be pursuing in furtherance of authorized 
     counterterrorism and counterintelligence investigations. The 
     presumptive relevance standard does not, however, allow the 
     government to obtain the documents merely by showing 
     relevance to a foreign power or agent of a foreign power 
     through a statement of ``specific and articulable facts.'' A 
     court must also find that the requested records are actually 
     relevant to an authorized investigation.
       Second, the government may be able to acquire certain 
     records even if it cannot show

[[Page E2582]]

     that the documents are relevant to a foreign power or agent 
     of a foreign power. However, these types of records, which do 
     not fall into the ``presumptively relevant'' category, would 
     be evaluated with a higher degree of scrutiny by a court. The 
     court would determine whether or not the government presented 
     specific and articulable facts to show relevance to an 
     authorized investigation.
       With respect to judicial review, current law requires the 
     recipient of a nondisclosure order associated with a Sec. 215 
     order to wait a year before seeking judicial review of the 
     nondisclosure order. Sec. 103 allows a recipient to challenge 
     both the underlying order and any associated nondisclosure 
     order immediately. In addition, the government must notify 
     the recipient of a right to challenge the legality of the 
     production order or nondisclosure order, and the procedure to 
     follow to file such a petition at the time the government 
     serves the Sec. 215 order on the recipient. Absent bad faith 
     on the part of the government, current law also allows a 
     certification by a high level official to conclusively defeat 
     a challenge to a nondisclosure order. Sec. 103 eliminates the 
     concept of a ``conclusive certification'' entirely.
       Compliance assessments of minimization procedures 
     pertaining to Sec. 215 orders are now facilitated by allowing 
     FISA court judges to review government compliance with 
     minimization procedures associated with specific orders. A 
     request for Sec. 215 records cannot be made to a library or 
     bookseller for documentary materials that contain personally 
     identifiable information concerning a patron. None of these 
     elements are present in the current law.
       Sec. 104. Sunset Relating to Individual Terrorists as 
     Agents of Foreign Powers. Sec. 104 allows the ``Lone Wolf' 
     provision to sunset on December 31, 2009. ``Lone Wolf'' is 
     not reauthorized.
       Sec. 105. Audits. Sec. 105 requires the DOJ Inspector 
     General to audit and submit reports to Congress for 215 
     tangible thing orders, National Security Letters (NSLs), and 
     FISA pen register/trap and trace orders for all calendar 
     years through 2013.
       Sec. 106. Criminal ``sneak and peek'' searches. Sec. 106 
     requires the government to seek an extension for delaying 
     notice of the search after seven (7) days, not the current 
     thirty (30) days. Any extension to delay notice granted by a 
     court cannot be longer than 21 days at a time. In addition, 
     any application for extension must be made by the Senate-
     confirmed United States Attorney for the district seeking the 
     delay. This section also narrows the circumstances under 
     which the government could obtain a ``sneak and peek'' 
     warrant by eliminating ``otherwise seriously jeopardizing an 
     investigation or unduly delaying a trial'' as a situation 
     that would permit the issuance of a ``sneak and peek'' 
     warrant.
       Sec. 107. Use of Pen Registers and Trap and Trace Devices 
     under title 18, United States Code. Sec. 107 requires the 
     application for a pen register to contain a statement of 
     specific and articulable facts showing that the information 
     likely to be obtained is relevant to an ongoing criminal 
     investigation. Current law only requires a certification by 
     the applicant.
       Sec. 108. Orders for Pen Registers and Trap and Trace 
     Devices for Foreign Intelligence Purposes. Sec. 108 requires 
     the application for a pen register to contain a statement of 
     specific and articulable facts relied upon by the applicant 
     to justify the belief that the information likely to be 
     obtained is foreign intelligence information not concerning a 
     United States person or is relevant to an ongoing 
     investigation. Current law only requires a certification by 
     the applicant. This section also requires the implementation 
     of minimization procedures for pen registers and trap and 
     trace devices, and allows FISA court judges to assess the 
     government's compliance with these minimization procedures. 
     These are new requirements.
       Sec. 109. Public Reporting on the Foreign Intelligence 
     Surveillance Act. Sec. 109 requires annual public reporting 
     of aggregate numbers of requests for surveillance that also 
     include a breakdown of requests for (a) electronic 
     surveillance, (b) physical searches, (c) orders for tangible 
     things (Section 215 orders), and (d) pen registers. Current 
     law requires only public reporting of the above categories in 
     the aggregate.
       Sec. 110. Challenges to Nationwide Orders for Electronic 
     Surveillance. Sec. 110 allows a provider of electronic 
     communication service or remote computing service to 
     challenge a subpoena, order, or warrant requiring disclosure 
     of customer communications or records in either the district 
     in which the order was issued or the district in which the 
     order was served.


               Title 11--National Security Letter Reform

       Sec. 201. Short Title. Sec. 201 indicates that title II 
     shall be cited as the ``National Security Letter Reform Act 
     of 2009.''
       Sec. 202. Sunset. Section 202 provides a sunset date of 
     December 31, 2013 for national security letters, with the 
     effect of returning the relevant national security letter 
     statutes to read as they read on October 25, 2001.
       Sec. 203. National Security Letter defined. Sec. 203 
     defines ``national security letter,'' for the purposes of 
     this bill, as a request for information under one of the 
     enumerated provisions of law.
       Sec. 204. Modification of Standard. Sec. 204 requires an 
     official with authority to issue a national security letter 
     to document and retain a statement of specific and 
     articulable facts showing that there are reasonable grounds 
     to believe that the information sought pertains to a foreign 
     power or agent of a foreign power. This standard changes the 
     focus of the ``relevance'' required under current law from 
     ``authorized investigation'' to ``foreign power or agent of a 
     foreign power.'' In addition, current law does not directly 
     couple the relevance standard with ``specific and 
     articulable'' facts as support for relevance--a more exacting 
     standard for the government to meet. Current law also does 
     not require the government to create and maintain a record of 
     such facts at the time the national security letter is 
     issued.
       Sec. 205. Notification of Right to Judicial Review of 
     Nondisclosure Order. Sec. 205 requires the government to 
     notify a recipient of a national security letter of (1) a 
     right to judicial review of any nondisclosure requirement 
     imposed in connection with that national security letter and, 
     (2) that the nondisclosure requirement will remain in effect 
     during the pendency of any judicial review proceedings. 
     Current law does not require such notification.
       Sec. 206. Disclosure for Law Enforcement Purposes. Sec. 206 
     requires the Attorney General to authorize the use of any 
     information acquired or derived from a national security 
     letter in a criminal proceeding. Current law does not require 
     such ``use authority'' for national security letters.
       Sec. 207. Judicial Review of National Security Letter 
     Nondisclosure Order. Sec. 207 establishes additional 
     procedures for a recipient to seek judicial review of a 
     nondisclosure requirement imposed in connection with a 
     national security letter. If the recipient wishes to have a 
     court review a nondisclosure requirement, the recipient must 
     notify the government. Not later than thirty days after the 
     receipt of notification, the government must apply for a 
     court order prohibiting the disclosure of information about 
     the national security letter or the existence of the national 
     security letter. The nondisclosure requirement remains in 
     effect during the pendency of any judicial review 
     proceedings. The government's application for a nondisclosure 
     order must include a certification from the Attorney General, 
     Deputy Attorney General, or the Director of the FBI (or the 
     head of another agency if not part of DOJ) containing a 
     statement of specific and articulable facts indicating that 
     disclosure may result in a danger to the national security of 
     the United States, interference with a criminal, 
     counterterrorism, or counterintelligence investigation, 
     interference with diplomatic relations, or danger to the life 
     or physical safety of any person. If a court determines that 
     there is reason to believe that disclosure will result in one 
     of the enumerated harms, the court will issue a nondisclosure 
     order for no longer than 180 days. The government can seek 
     renewals of nondisclosure orders for additional periods of no 
     longer than 180 days each. If there comes a time when the 
     facts supporting a nondisclosure order issued by the court 
     cease to exist, the government must promptly notify a 
     recipient who sought judicial review of a nondisclosure order 
     that the nondisclosure is no longer in effect.
       Current law neither requires the recipient to formally 
     notify the government if ``he'' wishes to seek judicial 
     review, nor specifies that the government will initiate such 
     court review by applying for a court order. The government is 
     also not required to notify a recipient who sought judicial 
     review of a nondisclosure if or when such an order would 
     cease to exist based on a change in facts supporting the 
     nondisclosure order. In addition, absent bad faith on the 
     part of the government, current law also allows a 
     certification by a high level government official to 
     conclusively defeat a challenge to a nondisclosure order if 
     the challenge is filed within one year of the request for 
     records. Current law also allows a recertification made by 
     high level officials to be treated as conclusive, unless made 
     in bad faith. Sec. 207 eliminates the concept of a 
     ``conclusive certification'' entirely. Moreover, this section 
     corrects constitutional defects in the nondisclosure orders 
     pertaining to national security letters as addressed in Doe 
     v. Mukasey, 549 F.3d 861 (2nd Cir. 2008).
       Sec. 208. Minimization Procedures. Sec. 208 requires the 
     Attorney General to establish minimization and destruction 
     procedures to ensure that information obtained pursuant to a 
     national security letter regarding persons that are no longer 
     of interest in an authorized investigation is destroyed.

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