[Congressional Record Volume 161, Number 85 (Sunday, May 31, 2015)]
[Senate]
[Pages S3344-S3345]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1443. Mr. PAUL (for himself and Mr. Wyden) submitted an amendment
intended to be proposed by him to the bill H.R. 2048, to reform the
authorities of the Federal Government to require the production of
certain business records, conduct electronic surveillance, use pen
registers and trap and trace devices, and use other forms of
information gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
SEC. ___. REQUIREMENT OF NOTICE TO DEFENDANTS.
(a) In General.--
(1) Electronic surveillance.--Section 106 (50 U.S.C. 1806)
is amended by striking subsections (c) and (d) and inserting
the following:
``(c)(1) Whenever the Government initiates a proceeding in
or before any court, department, officer, agency, regulatory
body, or other authority of the United States against a
person, the Government shall notify the person and the court
or authority of--
``(A) each title of this Act the Government relied on to
obtain the communications of the person or information about
the communications or activities of the person, which
contributed in any manner to the investigation of the person;
and
``(B) each type of communication or information obtained
under this Act, as described in the order or directive relied
upon to obtain the communication or information.
``(2) The Government shall provide the notification
required under paragraph (1) before or within a reasonable
time after the commencement of the proceeding.
``(d) The notification requirement under subsection (c)
shall apply to any State or political subdivision thereof
whenever the State or political subdivision initiates a
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the State or
political subdivision against a person, in the same manner
such subsection applies to the Government in connection with
a proceeding against a person.''.
(2) Physical searches.--Section 305 (50 U.S.C. 1825) is
amended by striking subsections (d) and (e) and inserting the
following:
``(d)(1) Whenever the Government initiates a proceeding in
or before any court, department, officer, agency, regulatory
body, or other authority of the United States against a
person, the Government shall notify the person and the court
or authority of--
``(A) each title of this Act the Government relied on to
obtain the communications of the person or information about
the communications or activities of the person, which
contributed in any manner to the investigation of the person;
and
``(B) each type of communication or information obtained
under this Act, as described in the order or directive relied
upon to obtain the communication or information.
``(2) The Government shall provide the notification
required under paragraph (1) before or within a reasonable
time after the commencement of the proceeding.
``(e) The notification requirement under subsection (d)
shall apply to any State or political subdivision thereof
whenever the State or political subdivision initiates a
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the State or
political subdivision against a person, in the same manner
such subsection applies to the Government in connection with
a proceeding against a person.''.
(3) Pen register and trap and trace devices.--Section 405
(50 U.S.C. 1845) is amended by striking subsections (c) and
(d) and inserting the following:
``(c)(1) Whenever the Government initiates a proceeding in
or before any court, department, officer, agency, regulatory
body, or other authority of the United States against a
person, the Government shall notify the person and the court
or authority of--
``(A) each title of this Act the Government relied on to
obtain the communications of the person or information about
the communications or activities of the person, which
contributed in any manner to the investigation of the person;
and
``(B) each type of communication or information obtained
under this Act, as described in the order or directive relied
upon to obtain the communication or information.
``(2) The Government shall provide the notification
required under paragraph (1) before or within a reasonable
time after the commencement of the proceeding.
``(d) The notification requirement under subsection (c)
shall apply to any State or political subdivision thereof
whenever the State or political subdivision initiates a
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the State or
political subdivision against a person, in the same manner
such subsection applies to the Government in connection with
a proceeding against a person.''.
(b) Tangible Things.--Section 501 (50 U.S.C. 1861), as
amended by section 107 of this Act, is amended by adding at
the end the following:
``(l) Suppression of Evidence.--
``(1) Motion to suppress.--
``(A) In general.--Any person against whom evidence
obtained or derived from the production of tangible things
under this title is to be, or has been, introduced or
otherwise used or disclosed in any trial, hearing, or other
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United
States, a State, or a political subdivision thereof, may move
to suppress the evidence obtained or derived from the
production of the communications of the person or information
about the communications or activities of the person on the
grounds that--
``(i) the information was unlawfully acquired; or
``(ii) the production was not made in accordance with an
order of authorization or approval.
``(B) Timing.--A motion described in subparagraph (A) shall
be made before the trial, hearing, or other proceeding
commences, unless there was no opportunity to make such a
motion or the person was not aware of the grounds of the
motion.
``(2) In camera and ex parte review by court.--
``(A) Definition.--In this paragraph, the term `covered
circumstance' means--
``(i) that--
``(I) a court or authority receives a notice under
subsection (c) or (d) of section 106, subsection (d) or (e)
of section 305, or subsection (c) or (d) of section 405 that
relates to the production of tangible things under this
title;
``(II) a motion is made under paragraph (1) of this
subsection; or
``(III) a motion or request is made by a person under any
other statute or rule of the United States or any State
before a court or authority of the United States or any State
to--
``(aa) discover or obtain applications or orders or other
materials relating to the production of tangible things under
this title; or
``(bb) discover, obtain, or suppress evidence or
information obtained or derived from the
[[Page S3345]]
production of tangible things under this title; and
``(ii) that the Attorney General files an affidavit under
oath that disclosure or an adversary hearing would harm the
national security of the United States.
``(B) Authority.--In a covered circumstance, the applicable
district court of the United States, or if notice is given to
or the motion is made before another authority, the district
court of the United States in the same judicial district as
the authority, shall review in camera and ex parte the
application, order, and such other materials relating to the
production of tangible things under this title as may be
necessary to determine whether the production was lawfully
authorized and conducted.
``(C) Disclosure.--In making a determination under
subparagraph (B), the court may disclose to the applicable
person, under appropriate security procedures and protective
orders, portions of the application, order, or other
materials relating to the production only if such disclosure
would aid the court in making an accurate determination of
the legality of the surveillance.
``(3) Suppression of evidence; denial of motion.--If a
district court of the United States determines under
paragraph (2) that the production of tangible things under
this title was not lawfully authorized or conducted, the
court shall, in accordance with the requirements of law,
suppress the evidence which was unlawfully obtained or
derived from the production or otherwise grant the motion of
the movant. If the court determines that the production was
lawfully authorized and conducted, it shall deny the motion
of the movant except to the extent that due process requires
discovery or disclosure.
``(4) Finality of orders.--An order granting a motion or
request under paragraph (3), a determination under this
subsection that the production of tangible things under this
title was not lawfully authorized or conducted, and an order
of a district court of the United States requiring review or
granting disclosure of an application, order, or other
material relating to the production of tangible things under
this title shall be a final order and binding upon all courts
of the United States and the several States, except a United
States court of appeals and the Supreme Court of the United
States.
``(5) Destruction of unlawfully obtained evidence.--If a
district court of the United States determines under
paragraph (2) that the production of tangible things under
this title was not lawfully authorized or conducted, the
determination is a final order under paragraph (4), and the
district court finds there is no reason to believe that
destruction 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 Government shall destroy all copies of the
tangible things produced under this title in the possession
of the Government by not later than 30 days after the date of
issuance of the final court order.''.
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