[Congressional Record Volume 161, Number 86 (Monday, June 1, 2015)]
[Senate]
[Pages S3410-S3417]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1460. 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:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Intelligence Oversight and Surveillance Reform Act''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS
Sec. 101. End of government bulk collection of business records.
Sec. 102. Emergency authority for access to call data records.
Sec. 103. Challenges to government surveillance.
TITLE II--PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND TRACE
DEVICES
Sec. 201. Privacy protections for pen registers and trap and trace
devices.
TITLE III--PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS
Sec. 301. Clarification on prohibition on searching of collections of
communications to conduct warrantless searches for the
communications of United States persons.
Sec. 302. Protection against collection of wholly domestic
communications not concerning terrorism under FISA
Amendments Act.
Sec. 303. Prohibition on reverse targeting under FISA Amendments Act.
Sec. 304. Limits on use of unlawfully obtained information under FISA
Amendments Act.
Sec. 305. Challenges to Government surveillance.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
Sec. 401. Definitions.
Sec. 402. Office of the Constitutional Advocate.
Sec. 403. Advocacy before the FISA Court.
Sec. 404. Advocacy before the petition review pool.
Sec. 405. Appellate review.
Sec. 406. Disclosure.
Sec. 407. Annual report to Congress.
Sec. 408. Preservation of rights.
TITLE V--NATIONAL SECURITY LETTER REFORMS
Sec. 501. National security letter authority.
Sec. 502. Public reporting on National Security Letters.
TITLE VI--REPORTING FISA ORDERS AND NATIONAL SECURITY LETTERS
Sec. 601. Third-party reporting of FISA orders and National Security
Letters.
Sec. 602. Government reporting of FISA orders.
TITLE VII--OTHER MATTERS
Sec. 701. Privacy and Civil Liberties Oversight Board subpoena
authority.
Sec. 702. Scope of liability protection for providing assistance to the
Government.
TITLE I--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS
SEC. 101. END OF GOVERNMENT BULK COLLECTION OF BUSINESS
RECORDS.
(a) Privacy Protections for Section 215 Business Records
Orders.--
(1) In general.--Section 501(b) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(b)) is amended--
(A) in paragraph (1)(B), by striking ``and'' at the end;
(B) in paragraph (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) pertain to--
``(I) a foreign power or an agent of a foreign power;
``(II) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(III) an individual in contact with, or known to, a
suspected agent of a foreign power; and
``(B) a statement of proposed minimization procedures;
and''; and
(C) by adding at the end the following:
``(3) if the applicant is seeking a nondisclosure
requirement described in subsection (d), shall include--
``(A) a statement of specific and articulable facts
providing reason to believe that disclosure of particular
information about the existence or contents of the order
requiring the production of tangible things under this
section during the applicable time period will result in--
``(i) endangering the life or physical safety of any
person;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with evidence;
``(iv) intimidation of potential witnesses;
``(v) interference with diplomatic relations; or
``(vi) otherwise seriously endangering the national
security of the United States by alerting a target, an
associate of a target, or the foreign power of which the
target is an agent, of the interest of the Government in the
target;
``(B) an explanation of how the harm identified under
subparagraph (A) is related to the authorized investigation
to which the tangible things sought are relevant;
``(C) an explanation of how the nondisclosure requirement
is narrowly tailored to address the specific harm identified
under subparagraph (A); and
``(D) the time period during which the Government believes
the nondisclosure requirement should apply.''.
(2) Order.--Section 501(c) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(c)) is amended--
(A) in paragraph (1)--
(i) by striking ``subsections (a) and (b),'' and inserting
``subsection (a) and paragraphs (1) and (2) of subsection (b)
and that the proposed minimization procedures meet the
definition of minimization procedures under subsection
(g),''; and
(ii) by striking the last sentence and inserting the
following: ``If the judge finds that
[[Page S3411]]
the requirements of subsection (b)(3) have been met, such
order shall include a nondisclosure requirement, which may
apply for not longer than 1 year, unless the facts justify a
longer period of nondisclosure, subject to the principles and
procedures described in subsection (d).''; and
(B) in paragraph (2)--
(i) in subparagraph (C), by striking ``(d);'' and inserting
``(d), if applicable;'';
(ii) in subparagraph (D), by striking ``and'' at the end;
(iii) in subparagraph (E), by striking the period at the
end and inserting ``; and''; and
(iv) by adding at the end the following:
``(F) shall direct that the minimization procedures be
followed.''.
(3) Nondisclosure.--Section 501(d) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(d)) is
amended to read as follows:
``(d) Nondisclosure.--
``(1) In general.--No person who receives an order under
subsection (c) that contains a nondisclosure requirement
shall disclose to any person the particular information
specified in the nondisclosure requirement during the time
period to which the requirement applies.
``(2) Exception.--
``(A) Disclosure.--A person who receives an order under
subsection (c) that contains a nondisclosure requirement may
disclose information otherwise subject to any applicable
nondisclosure requirement to--
``(i) those persons to whom disclosure is necessary in
order to comply with an order under this section;
``(ii) an attorney in order to obtain legal advice or
assistance regarding the order; or
``(iii) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
``(B) Application.--A person to whom disclosure is made
under subparagraph (A) shall be subject to the nondisclosure
requirements applicable to a person to whom an order is
directed under this section in the same manner as the person
to whom the order is directed.
``(C) Notification.--Any person who discloses to a person
described in subparagraph (A) information otherwise subject
to a nondisclosure requirement shall notify the person of the
applicable nondisclosure requirement.
``(3) Extension.--The Director of the Federal Bureau of
Investigation, or a designee of the Director (whose rank
shall be no lower than Assistant Special Agent in Charge),
may apply for renewals of the prohibition on disclosure of
particular information about the existence or contents of an
order requiring the production of tangible things under this
section for additional periods of not longer than 1 year,
unless the facts justify a longer period of nondisclosure. A
nondisclosure requirement shall be renewed if a court having
jurisdiction under paragraph (4) determines that the
application meets the requirements of subsection (b)(3).
``(4) Jurisdiction.--An application for a renewal under
this subsection shall be made to--
``(A) a judge of the court established under section
103(a); or
``(B) a United States Magistrate Judge under chapter 43 of
title 28, United States Code, who is publicly designated by
the Chief Justice of the United States to have the power to
hear applications and grant orders for the production of
tangible things under this section on behalf of a judge of
the court established under section 103(a).''.
(4) Minimization.--Section 501(g) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is
amended--
(A) 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
(B) in paragraph (2)(A), by inserting ``acquisition and''
after ``to minimize the''.
(b) Judicial Review of Section 215 Orders.--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)(i)--
(A) by striking ``that order'' and inserting ``such
production order or any nondisclosure order imposed in
connection with such production order''; and
(B) by striking the second sentence;
(2) by striking subparagraph (C) and inserting the
following new subparagraph:
``(C) A judge considering a petition to modify or set aside
a nondisclosure order shall grant such petition unless the
court determines that--
``(i) there is reason to believe that disclosure of the
information subject to the nondisclosure requirement during
the applicable time period will result in--
``(I) endangering the life or physical safety of any
person;
``(II) flight from prosecution;
``(III) destruction of or tampering with evidence;
``(IV) intimidation of potential witnesses;
``(V) interference with diplomatic relations; or
``(VI) otherwise seriously endangering the national
security of the United States by alerting a target, an
associate of a target, or the foreign power of which the
target is an agent, of the interest of the Government in the
target;
``(ii) the harm identified under clause (i) relates to the
authorized investigation to which the tangible things sought
are relevant; and
``(iii) the nondisclosure requirement is narrowly tailored
to address the specific harm identified under clause (i).'';
and
(3) by adding at the end the following new subparagraph:
``(E) If a judge denies a petition to modify or set aside a
nondisclosure order under this paragraph, no person may file
another petition to modify or set aside such nondisclosure
order until the date that is one year after the date on which
such judge issues the denial of such petition.''.
SEC. 102. EMERGENCY AUTHORITY FOR ACCESS TO CALL DATA
RECORDS.
(a) In General.--Section 403 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1843) is amended by
adding at the end the following:
``(e)(1) Notwithstanding any other provision of this
subsection, the Attorney General may require the production
of call data records by the provider of a wire or electronic
communication service on an emergency basis if--
``(A) such records--
``(i) are relevant to an authorized investigation (other
than a threat assessment) conducted in accordance with
section 402 or 501, as appropriate, to obtain foreign
intelligence information not concerning a United States
person or to protect against international terrorism or
clandestine intelligence activities; and
``(ii) pertain to--
``(I) a foreign power or an agent of a foreign power;
``(II) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(III) an individual in contact with, or known to, a
suspected agent of a foreign power;
``(B) the Attorney General reasonably determines--
``(i) an emergency requires the production of such records
before an order requiring such production can with due
diligence be obtained under section 402 or 501, as
appropriate; and
``(ii) the factual basis for issuance of an order under
section 402 or 501, as appropriate, to require the production
of such records exists;
``(C) a judge referred to in section 402(b) or 501(b)(1),
as appropriate, is informed by the Attorney General at the
time of the required production of such records that the
decision has been made to require such production on an
emergency basis; and
``(D) an application in accordance with section 402 or 501,
as appropriate, is made to such judge as soon as practicable,
but not more than 7 days after the date on which the Attorney
General requires the production of such records under this
subsection.
``(2)(A) In the absence of an order issued under section
402 or 501, as appropriate, to approve the emergency required
production of call data records under paragraph (1), the
authority to require the production of such records shall
terminate at the earlier of--
``(i) when the information sought is obtained;
``(ii) when the application for the order is denied under
section 402 or 501, as appropriate; or
``(iii) 7 days after the time of the authorization by the
Attorney General.
``(B) If an application for an order applied for under
section 402 or 501, as appropriate, for the production of
call data records required to be produced pursuant to
paragraph (1) is denied, or in any other case where the
emergency production of call data records under this section
is terminated and no order under section 402 or 501, as
appropriate, is issued approving the required production of
such records, no information obtained or evidence derived
from such records shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such records shall subsequently be used or
disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.''.
(b) Termination of Section 501 References.--On the date
that section 102(b)(1) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C.
1805 note) takes effect, subsection (e) of section 403 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1843), as added by paragraph (1), is amended--
(1) by striking ``or section 501, as appropriate,'' each
place that term appears;
(2) in paragraph (1)--
(A) in subparagraph (B), by striking ``or 501, as
appropriate;'' and by inserting a semicolon; and
(B) in subparagraph (C), by striking ``or 501(b)(1), as
appropriate,''; and
(3) in paragraph (2)(A)(ii), by striking ``or 501, as
appropriate;'' and by inserting a semicolon.
[[Page S3412]]
SEC. 103. CHALLENGES TO GOVERNMENT SURVEILLANCE.
(a) In General.--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:
``SEC. 503. CHALLENGES TO ORDERS TO PRODUCE CERTAIN BUSINESS
RECORDS.
``(a) Appeal.--
``(1) In general.--A person who is required to produce any
tangible thing pursuant to an order issued under section 501
may appeal the order to a United States court of appeals on
the basis that the order violates the Constitution of the
United States.
``(2) Venue.--An appeal filed pursuant to paragraph (1) may
be filed--
``(A) in the United States court of appeals for a circuit
embracing a judicial district in which venue would be proper
for a civil action under section 1391 of title 28, United
States Code; or
``(B) United States Court of Appeals for the District of
Columbia.
``(b) Supreme Court Review.--A person may seek a writ of
certiorari from the Supreme Court of the United States for
review of a decision of an appeal filed under subsection
(a)(1).''.
(b) Table of Contents Amendment.--The table of contents in
the first section of the Foreign Intelligence Surveillance
Act of 1978 is amended by adding after the item relating to
section 502 the following:
``Sec. 503. Challenges to orders to produce certain business
records.''.
TITLE II--PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND TRACE
DEVICES
SEC. 201. PRIVACY PROTECTIONS FOR PEN REGISTERS AND TRAP AND
TRACE DEVICES.
(a) Application.--Section 402(c) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is
amended--
(1) in paragraph (1), by striking ``and'' at the end; and
(2) by striking paragraph (2) and inserting the following
new paragraphs:
``(2) a statement of facts showing that there are
reasonable grounds to believe that the records sought--
``(A) are relevant to an authorized investigation to obtain
foreign intelligence information not concerning a United
States person or to protect against international terrorism
or clandestine intelligence activities (other than a threat
assessment), provided that such investigation of a United
States person is not conducted solely upon the basis of
activities protected by the first amendment to the
Constitution; and
``(B) pertain to--
``(i) a foreign power or an agent of a foreign power;
``(ii) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(iii) an individual in contact with, or known to, a
suspected agent of a foreign power; and
``(3) a statement of proposed minimization procedures.''.
(b) Minimization.--
(1) Definition.--Section 401 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1841) is amended by
adding at the end the following:
``(4) The term `minimization procedures' means--
``(A) specific procedures that are reasonably designed in
light of the purpose and technique of an order for the
installation and use of a pen register or trap and trace
device, to minimize the 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.''.
(2) Pen registers and trap and trace devices.--Section 402
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1842) is amended--
(A) in subsection (d)--
(i) in paragraph (1), by inserting ``, and 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) 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 the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
acquired, retained, or disseminated.''.
(3) Emergencies.--Section 403 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1843), as amended by
section 102(a), is further amended--
(A) by redesignating subsection (c) as (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 required by this title for the
issuance of a judicial order be followed.''.
(4) Use of information.--Section 405(a)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1))
is amended by striking the period at the end and inserting
``and the minimization procedures required under the order
approving such pen register or trap and trace device.''.
TITLE III--PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS
SEC. 301. CLARIFICATION ON PROHIBITION ON SEARCHING OF
COLLECTIONS OF COMMUNICATIONS TO CONDUCT
WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF
UNITED STATES PERSONS.
Section 702(b) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1881a(b)) is amended--
(1) by redesignating paragraphs (1) through (5) as
subparagraphs (A) through (E), respectively, and indenting
such subparagraphs, as so redesignated, an additional two ems
from the left margin;
(2) by striking ``An acquisition'' and inserting the
following:
``(1) In general.--An acquisition''; and
(3) by adding at the end the following:
``(2) Clarification on prohibition on searching of
collections of communications of united states persons.--
``(A) In general.--Except as provided in subparagraph (B),
no officer or employee of the United States may conduct a
search of a collection of communications acquired under this
section in an effort to find communications of a particular
United States person (other than a corporation).
``(B) Concurrent authorization and exception for emergency
situations.--Subparagraph (A) shall not apply to a search for
communications related to a particular United States person
if--
``(i) such United States person is the subject of an order
or emergency authorization authorizing electronic
surveillance or physical search under section 105, 304, 703,
704, or 705 of this Act, or under title 18, United States
Code, for the effective period of that order;
``(ii) the entity carrying out the search has a reasonable
belief that the life or safety of such United States person
is threatened and the information is sought for the purpose
of assisting that person; or
``(iii) such United States person has consented to the
search.''.
SEC. 302. PROTECTION AGAINST COLLECTION OF WHOLLY DOMESTIC
COMMUNICATIONS NOT CONCERNING TERRORISM UNDER
FISA AMENDMENTS ACT.
(a) In General.--Section 702 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881a) is amended--
(1) in subsection (d)(1)--
(A) in subparagraph (A), by striking ``and'' at the end;
(B) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following new subparagraph:
``(C) limit the acquisition of the contents of any
communication to communications to which any party is a
target of the acquisition or communications that refer to the
target of the acquisition, if such communications are
acquired to protect against international terrorism.''; and
(2) in subsection (i)(2)(B)--
(A) in clause (i), by striking ``and'' at the end;
(B) in clause (ii), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following new clause:
``(iii) limit the acquisition of the contents of any
communication to communications to which any party is a
target of the acquisition or communications that refer to the
target of the acquisition, if such communications are
acquired to protect against international terrorism.''.
(b) Conforming Amendment.--Section 701(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881(a)) is
amended by inserting `` `international terrorism','' after ``
`foreign power',''.
SEC. 303. PROHIBITION ON REVERSE TARGETING UNDER FISA
AMENDMENTS ACT.
Section 702 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881a), as amended by sections 301 and 302 of
this Act, is further amended--
(1) in paragraph (1)(B) of subsection (b), as redesignated
by section 301, by striking ``the purpose'' and inserting ``a
significant purpose'';
(2) in subsection (d)(1)(A)--
(A) by striking ``ensure that'' and inserting the
following: ``ensure--
``(i) that''; and
[[Page S3413]]
(B) by adding at the end the following:
``(ii) that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States; and'';
(3) in subsection (g)(2)(A)(i)(I)--
(A) by striking ``ensure that'' and inserting the
following: ``ensure--
``(aa) that''; and
(B) by adding at the end the following:
``(bb) that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States; and''; and
(4) in subsection (i)(2)(B)(i)--
(A) by striking ``ensure that'' and inserting the
following: ``ensure--
``(I) that''; and
(B) by adding at the end the following:
``(II) that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States; and''.
SEC. 304. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION
UNDER FISA AMENDMENTS ACT.
Section 702(i)(3) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1881a(i)(3)) is amended by striking
subparagraph (B) and inserting the following:
``(B) Correction of deficiencies.--
``(i) In general.--If the Court finds that a certification
required by subsection (g) does not contain all of the
required elements, or that the procedures required by
subsections (d) and (e) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the order of the
Court--
``(I) correct any deficiency identified by the order of the
Court not later than 30 days after the date on which the
Court issues the order; or
``(II) cease, or not begin, the implementation of the
authorization for which such certification was submitted.
``(ii) Limitation on use of information.--
``(I) In general.--Except as provided in subclause (II), no
information obtained or evidence derived from an acquisition
pursuant to a certification or targeting or minimization
procedures subject to an order under clause (i) concerning
any United States person shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from the acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of the
United States person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(II) Exception.--If the Government corrects any
deficiency identified by the order of the Court under clause
(i), the Court may permit the use or disclosure of
information acquired before the date of the correction under
such minimization procedures as the Court shall establish for
purposes of this clause.''.
SEC. 305. CHALLENGES TO GOVERNMENT SURVEILLANCE.
Section 702 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881a), as amended by this title, is further
amended by adding at the end the following new subsection:
``(m) Challenges to Government Surveillance.--
``(1) Injury in fact.--In any claim in a civil action
brought in a court of the United States relating to
surveillance conducted under this section, the person
asserting the claim has suffered an injury in fact if the
person--
``(A) has a reasonable basis to believe that the person's
communications will be acquired under this section; and
``(B) has taken objectively reasonable steps to avoid
surveillance under this section.
``(2) Reasonable basis.--A person shall be presumed to have
demonstrated a reasonable basis to believe that the
communications of the person will be acquired under this
section if the profession of the person requires the person
regularly to communicate foreign intelligence information
with persons who--
``(A) are not United States persons; and
``(B) are located outside the United States.
``(3) Objective steps.--A person shall be presumed to have
taken objectively reasonable steps to avoid surveillance
under this section if the person demonstrates that the steps
were taken in reasonable response to rules of professional
conduct or analogous professional rules.''.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
SEC. 401. DEFINITIONS.
In this title:
(1) Constitutional advocate.--The term ``Constitutional
Advocate'' means the Constitutional Advocate appointed under
section 402(b).
(2) Decision.--The term ``decision'' means a decision,
order, or opinion issued by the FISA Court or the FISA Court
of Review.
(3) FISA.--The term ``FISA'' means the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(4) FISA court.--The term ``FISA Court'' means the court
established under section 103(a) of FISA (50 U.S.C. 1803(a)).
(5) FISA court of review.--The term ``FISA Court of
Review'' means the court of review established under section
103(b) of FISA (50 U.S.C. 1803(b)).
(6) Office.--The term ``Office'' means the Office of the
Constitutional Advocate established under section 402(a).
(7) Petition review pool.--The term ``petition review
pool'' means the petition review pool established by section
103(e) of FISA (50 U.S.C. 1803(e)) or any member of that
pool.
(8) Significant construction or interpretation of law.--The
term ``significant construction or interpretation of law''
means a significant construction or interpretation of a
provision, as that term is construed under section 601(c) of
FISA (50 U.S.C. 1871(c)).
SEC. 402. OFFICE OF THE CONSTITUTIONAL ADVOCATE.
(a) Establishment.--There is established within the
judicial branch of the United States an Office of the
Constitutional Advocate.
(b) Constitutional Advocate.--
(1) In general.--The head of the Office is the
Constitutional Advocate.
(2) Appointment and term.--
(A) Appointment.--The Chief Justice of the United States
shall appoint the Constitutional Advocate from the list of
candidates submitted under subparagraph (B).
(B) Candidates.--
(i) List of candidates.--The Privacy and Civil Liberties
Oversight Board shall submit to the Chief Justice a list of
not less than 5 qualified candidates to serve as a
Constitutional Advocate.
(ii) Selection of candidates.--In preparing a list
described in clause (i), the Privacy and Civil Liberties
Oversight Board shall select candidates the Board believes
will be zealous and effective advocates in defense of civil
liberties and consider each potential candidate's--
(I) litigation and other professional experience;
(II) experience with the areas of law the Constitutional
Advocate is likely to encounter in the course of the
Advocate's duties; and
(III) demonstrated commitment to civil liberties.
(C) Security clearance.--An individual may be appointed
Constitutional Advocate without regard to whether the
individual possesses a security clearance on the date of the
appointment.
(D) Term and dismissal.--A Constitutional Advocate shall be
appointed for a term of 3 years and may be fired only for
good cause shown, including the demonstrated inability to
qualify for an adequate security clearance.
(E) Reappointment.--There shall be no limit to the number
of consecutive terms served by a Constitutional Advocate. The
reappointment of a Constitutional Advocate shall be made in
the same manner as appointment of a Constitutional Advocate.
(F) Acting constitutional advocate.--If the position of
Constitutional Advocate is vacant, the Chief Justice may
appoint an Acting Constitutional Advocate from among the
qualified employees of the Office. If there are no such
qualified employees, the Chief Justice may appoint an Acting
Constitutional Advocate from the most recent list of
candidates provided by the Privacy and Civil Liberties
Oversight Board pursuant to subparagraph (B). The Acting
Constitutional Advocate shall have all of the powers of a
Constitutional Advocate and shall serve until a
Constitutional Advocate is appointed.
(3) Employees.--The Constitutional Advocate is authorized,
without regard to the civil service laws and regulations, to
appoint and terminate employees of the Office.
(c) Security Clearances.--The appropriate departments,
agencies, and elements of the executive branch shall
cooperate with the Office, to the extent possible under
existing procedures and requirements, to expeditiously
provide the Constitutional Advocate and appropriate employees
of the Office with the security clearances necessary to carry
out the duties of the Constitutional Advocate.
(d) Duties and Authorities of the Constitutional
Advocate.--
(1) In general.--The Constitutional Advocate--
(A) shall review each application to the FISA Court by the
Attorney General;
(B) shall review each decision of the FISA Court, the
petition review pool, or the FISA Court of Review issued
after the date of the enactment of this Act and all documents
and other material relevant to such decision in a complete,
unredacted form;
(C) may participate in a proceeding before the petition
review pool if such participation is requested by a party in
such a proceeding or by the petition review pool;
(D) shall consider any request from a provider who has been
served with an order, certification, or directive compelling
the provider to provide assistance to the Government or to
release customer information to assist that provider in a
proceeding before
[[Page S3414]]
the FISA Court or the petition review pool, including a
request--
(i) to oppose the Government on behalf of the private party
in such a proceeding; or
(ii) to provide guidance to the private party if the
private party is considering compliance with an order of the
FISA Court;
(E) shall participate in a proceeding before the FISA Court
if appointed to participate by the FISA Court under section
403(a) and may participate in a proceeding before the
petition review pool if authorized under section 404(a);
(F) may request to participate in a proceeding before the
FISA Court or the petition review pool;
(G) shall participate in such a proceeding if such request
is granted;
(H) may request reconsideration of a decision of the FISA
Court under section 403(b);
(I) may appeal or seek review of a decision of the FISA
Court, the petition review pool, or the FISA Court of Review,
as permitted by this title; and
(J) shall participate in such appeal or review.
(2) Advocacy.--The Constitutional Advocate shall protect
individual rights by vigorously advocating before the FISA
Court, the petition review pool, or the FISA Court of Review,
as appropriate, in support of legal interpretations that
minimize the scope of surveillance and the extent of data
collection and retention.
(3) Utilization of outside counsel.--The Constitutional
Advocate--
(A) may delegate to a competent outside counsel any duty or
responsibility of the Constitutional Advocate with respect to
participation in a matter before the FISA Court, the FISA
Court of Review, or the Supreme Court of the United States;
and
(B) may not delegate to outside counsel any duty or
authority set out in subparagraph (A), (B), (D), (F), (H), or
(I) of paragraph (1).
(4) Availability of documents and material.--The FISA
Court, the petition review pool, or the FISA Court of Review,
as appropriate, shall order any agency, department, or entity
to make available to the Constitutional Advocate, or
appropriate outside counsel if utilized by the Constitutional
Advocate under paragraph (3), any documents or other material
necessary to carry out the duties described in paragraph (1).
SEC. 403. ADVOCACY BEFORE THE FISA COURT.
(a) Appointment To Participate.--
(1) In general.--The FISA Court may appoint the
Constitutional Advocate to participate in a FISA Court
proceeding.
(2) Standing.--If the Constitutional Advocate is appointed
to participate in a FISA Court proceeding pursuant to
paragraph (1), the Constitutional Advocate shall have
standing as a party before the FISA Court in that proceeding.
(b) Reconsideration of a FISA Court Decision.--
(1) Authority to move for reconsideration.--The
Constitutional Advocate may move the FISA Court to reconsider
any decision of the FISA Court made after the date of the
enactment of this Act by petitioning the FISA Court not later
than 30 days after the date on which all documents and
materials relevant to the decision are made available to the
Constitutional Advocate.
(2) Discretion of the fisa court.--The FISA Court shall
have discretion to grant or deny a motion for reconsideration
made pursuant to paragraph (1).
(c) Amicus Curiae Participation.--
(1) Motion by the constitutional advocate.--The
Constitutional Advocate may file a motion with the FISA Court
to permit and facilitate participation of amicus curiae,
including participation in oral argument if appropriate, in
any proceeding. The FISA Court shall have the discretion to
grant or deny such a motion.
(2) Facilitation by the fisa court.--The FISA Court may,
sua sponte, permit and facilitate participation by amicus
curiae, including participation in oral argument if
appropriate, in proceedings before the FISA Court.
(3) Regulations.--Not later than 180 days after the date of
the enactment of this Act, the FISA Court shall promulgate
rules to provide the public with information sufficient to
allow interested parties to participate as amicus curiae.
SEC. 404. ADVOCACY BEFORE THE PETITION REVIEW POOL.
(a) Authority To Participate.--The petition review pool or
any party to a proceeding before the petition review pool may
authorize the Constitutional Advocate to participate in a
petition review pool proceeding.
(b) Reconsideration of a Petition Review Pool Decision.--
(1) Authority to move for reconsideration.--The
Constitutional Advocate may move the petition review pool to
reconsider any decision of the petition review pool made
after the date of the enactment of this Act by petitioning
the petition review pool not later than 30 days after the
date on which all documents and materials relevant to the
decision are made available to the Constitutional Advocate.
(2) Discretion of the petition review pool.--The petition
review pool shall have discretion to grant or deny a motion
for reconsideration made pursuant to paragraph (1).
(c) Amicus Curiae Participation.--
(1) Motion by the constitutional advocate.--The
Constitutional Advocate may file a motion with the petition
review pool to permit and facilitate participation of amicus
curiae, including participation in oral argument if
appropriate, in any proceeding. The petition review pool
shall have the discretion to grant or deny such a motion.
(2) Facilitation by the fisa court.--The petition review
pool may, sua sponte, permit and facilitate participation by
amicus curiae, including participation in oral argument if
appropriate, in proceedings before the petition review pool.
(3) Regulations.--Not later than 180 days after the date of
the enactment of this Act, the petition review pool shall
promulgate rules to provide the public with information
sufficient to allow interested parties to participate as
amicus curiae.
SEC. 405. APPELLATE REVIEW.
(a) Appeal of FISA Court Decisions.--
(1) Authority to appeal.--The Constitutional Advocate may
appeal any decision of the FISA Court or the petition review
pool issued after the date of the enactment of this Act not
later than 90 days after the date the decision is issued,
unless it would be apparent to all reasonable jurists that
such decision is dictated by statute or by precedent handed
down after such date of enactment.
(2) Standing as appellant.--If the Constitutional Advocate
appeals a decision of the FISA Court or the petition review
pool pursuant to paragraph (1), the Constitutional Advocate
shall have standing as a party before the FISA Court of
Review in such appeal.
(3) Mandatory review.--The FISA Court of Review shall
review any FISA Court or petition review pool decision
appealed by the Constitutional Advocate and issue a decision
in such appeal.
(4) Standard of review.--The standards for a mandatory
review of a FISA Court or petition review pool decision
pursuant to paragraph (3) shall be--
(A) de novo with respect to issues of law; and
(B) clearly erroneous with respect to determination of
facts.
(5) Amicus curiae participation.--
(A) In general.--The FISA Court of Review shall accept
amicus curiae briefs from interested parties in all mandatory
reviews pursuant to paragraph (3) and shall provide for
amicus curiae participation in oral argument if appropriate.
(B) Regulations.--Not later than 180 days after the date of
the enactment of this Act, the FISA Court of Review shall
promulgate rules to provide the public with information
sufficient to allow interested parties to participate as
amicus curiae.
(b) Review of FISA Court of Review Decisions.--
(1) Authority.--The Constitutional Advocate may seek a writ
of certiorari from the Supreme Court of the United States for
review of any decision of the FISA Court of Review.
(2) Standing.--In any proceedings before the Supreme Court
of the United States relating to a petition of certiorari
filed under paragraph (1) and any proceedings in a matter for
which certiorari is granted, the Constitutional Advocate
shall have standing as a party.
SEC. 406. DISCLOSURE.
(a) Requirement To Disclose.--The Attorney General shall
publicly disclose--
(1) all decisions issued by the FISA Court, the petition
review pool, or the FISA Court of Review after July 10, 2003,
that include a significant construction or interpretation of
law;
(2) any decision of the FISA Court or the petition review
pool appealed by the Constitutional Advocate pursuant to this
title; and
(3) any FISA Court of Review decision that is issued after
an appeal by the Constitutional Advocate.
(b) Disclosure Described.--For each disclosure required by
subsection (a) with respect to a decision, the Attorney
General shall make available to the public documents
sufficient--
(1) to identify with particularity each legal question
addressed by the decision and how such question was resolved;
(2) to describe in general terms the context in which the
matter arises;
(3) to describe the construction or interpretation of any
statute, constitutional provision, or other legal authority
relied on by the decision; and
(4) to indicate whether the decision departed from any
prior decision of the FISA Court, the petition review pool,
or the FISA Court of Review.
(c) Documents Described.--The Attorney General shall
satisfy the disclosure requirements in subsection (b) by--
(1) releasing a FISA Court, petition review pool, or FISA
Court of Review decision in its entirety or as redacted;
(2) releasing a summary of a FISA Court, petition review
pool, or FISA Court of Review decision; or
(3) releasing an application made to the FISA Court, a
petition made to the petition review pool, briefs filed
before the FISA Court, the petition review pool, or the FISA
Court of Review, or other materials, in full or as redacted.
(d) Extensive Disclosure.--The Attorney General shall
release as much information regarding the facts and analysis
contained in a decision described in subsection (a) or
documents described in subsection (c) as is consistent with
legitimate national security concerns.
(e) Timing of Disclosure.--
[[Page S3415]]
(1) Decisions issued prior to enactment.--A decision issued
prior to the date of the enactment of this Act that is
required to be disclosed under subsection (a)(1) shall be
disclosed not later than 180 days after the date of the
enactment of this Act.
(2) FISA court and petition review pool decisions.--The
Attorney General shall release FISA Court or petition review
pool decisions appealed by the Constitutional Advocate not
later than 30 days after the date the appeal is filed.
(3) FISA court of review decisions.--The Attorney General
shall release FISA Court of Review decisions appealed by the
Constitutional Advocate not later than 90 days after the date
the appeal is filed.
(f) Petition by the Constitutional Advocate.--
(1) Authority to petition.--The Constitutional Advocate may
petition the FISA Court, the petition review pool, or the
FISA Court of Review to order--
(A) the public disclosure of a decision of such a Court or
review pool, and documents or other material relevant to such
a decision, previously designated as classified information;
or
(B) the release of an unclassified summary of such
decisions and documents.
(2) Contents of petition.--Each petition filed under
paragraph (1) shall contain a detailed declassification
proposal or a summary of the decision and documents that the
Constitutional Advocate proposes to have released publicly.
(3) Role of the attorney general.--
(A) Copy of petition.--The Constitutional Advocate shall
provide to the Attorney General a copy of each petition filed
under paragraph (1).
(B) Opposition.--The Attorney General may oppose a petition
filed under paragraph (1) by submitting any objections in
writing to the FISA Court, the petition review pool, or the
FISA Court of Review, as appropriate, not later than 90 days
after the date such petition was submitted.
(4) Public availability.--Not less than 91 days after
receiving a petition under paragraph (1), and taking into
account any objections from the Attorney General made under
paragraph (3)(B), the FISA Court, the petition review pool,
or the FISA Court of Review, as appropriate, shall declassify
and make readily available to the public any decision,
document, or other material requested in such petition, to
the greatest extent possible, consistent with legitimate
national security considerations.
(5) Effective date.--The Constitutional Advocate may not
file a petition under paragraph (1) until 181 days after the
date of the enactment of this Act, except with respect to a
decision appealed by the Constitutional Advocate.
SEC. 407. ANNUAL REPORT TO CONGRESS.
(a) Requirement for Annual Report.--The Constitutional
Advocate shall submit to Congress an annual report on the
implementation of this title.
(b) Contents.--Each annual report submitted under
subsection (a) shall--
(1) detail the activities of the Office;
(2) provide an assessment of the effectiveness of this
title; and
(3) propose any new legislation to improve the functioning
of the Office or the operation of the FISA Court, the
petition review pool, or the FISA Court of Review.
SEC. 408. PRESERVATION OF RIGHTS.
Nothing in this title shall be construed--
(1) to provide the Attorney General with authority to
prevent the FISA Court, the petition review pool, or the FISA
Court of Review from declassifying decisions or releasing
information pursuant to this title; and
(2) to eliminate the public's ability to secure information
under section 552 of title 5, United States Code (commonly
known as the ``Freedom of Information Act'') or any other
provision of law.
TITLE V--NATIONAL SECURITY LETTER REFORMS
SEC. 501. NATIONAL SECURITY LETTER AUTHORITY.
(a) National Security Letter Authority for Communications
Subscriber Records.--
(1) In general.--Section 2709(b) of title 18, United States
Code, is amended by amending paragraphs (1) and (2) to read
as follows:
``(1) request the name, address, length of service, and
local and long distance toll billing records of a person or
entity if the Director (or the Director's designee) certifies
in writing to the wire or electronic communication service
provider to which the request is made that--
``(A) the name, address, length of service, and toll
billing records sought are relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted
solely on the basis of activities protected by the first
amendment to the Constitution of the United States; and
``(B) there are specific and articulable facts showing that
there are reasonable grounds to believe that the name,
address, length of service, and toll billing records sought--
``(i) pertain to a foreign power or 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; and
``(2) request the name, address, and length of service of a
person or entity if the Director (or the Director's designee)
certifies in writing to the wire or electronic communication
service provider to which the request is made that--
``(A) the information sought is relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted
solely upon the basis of activities protected by the first
amendment to the Constitution of the United States; and
``(B) there are specific and articulable facts showing that
there are reasonable grounds to believe that the information
sought pertains to--
``(i) a foreign power or agent of a foreign power;
``(ii) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(iii) an individual in contact with, or known to, a
suspected agent.''.
(b) National Security Letter Authority for Certain
Financial Records.--Section 1114 of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414) is amended to read as
follows:
``SEC. 1114. NATIONAL SECURITY LETTER FOR CERTAIN FINANCIAL
RECORDS.
``(a) Authorization.--
``(1) In general.--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 Special Agent in Charge in a Bureau field
office, or the Director of the United States Secret Service
may issue in writing and cause to be served on a financial
institution, a National Security Letter requiring the
production of--
``(A) the name of a customer of the financial institution;
``(B) the address of a customer of the financial
institution;
``(C) the length of time during which a person has been, or
was, a customer of the financial institution (including the
start date) and the type of service provided by the
institution to the customer; and
``(D) any account number or other unique identifier
associated with a customer of the financial institution.
``(2) Limitation.--A National Security Letter issued under
this subsection may not require the production of records or
information not listed in paragraph (1).
``(b) National Security Letter Requirements.--
``(1) In general.--A National Security Letter issued under
subsection (a) shall--
``(A) be subject to the requirements of subsections (b)
through (f) of section 2709 of title 18, United States Code,
in the same manner and to the same extent as those provisions
apply with respect to a request under section 2709(b) of
title 18, United States Code, to a wire or electronic
communication service provider;
``(B)(i) in the case of a National Security Letter issued
by the Director of the Federal Bureau of Investigation or the
Director's designee, include 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) to obtain foreign intelligence
information not concerning a United States person or to
protect against international terrorism or clandestine
intelligence activities; and
``(II) pertain to--
``(aa) a foreign power or an agent of a foreign power;
``(bb) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(cc) an individual in contact with, or known to, a
suspected agent of a foreign power; and
``(ii) in the case of a National Security Letter issued by
the Director of the United States Secret Service, include a
statement of facts showing that there are reasonable grounds
to believe that the records or other things sought are
relevant to the conduct of the protective functions of the
United States Secret Service.
``(2) Reporting.--On a semiannual basis the Director of the
Federal Bureau of Investigation and the Director of the
United States Secret Service shall fully inform the Select
Committee on Intelligence, the Committee on the Judiciary,
and the Committee on Banking, Housing, and Urban Affairs of
the Senate and the Permanent Select Committee on
Intelligence, the Committee on the Judiciary, and the
Committee on Financial Services of the House of
Representatives, concerning all requests made under
subsection (a).
``(3) Definitions.--For purposes of this subsection, the
terms `agent of a foreign power', `international terrorism',
`foreign intelligence information', and `United States
person' have the same meanings as in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).
``(c) Definition of `Financial Institution'.--For purposes
of this section (and sections 1115 and 1117, insofar as the
sections relate to the operation of this section), the term
`financial institution' has the same meaning as in
subsections (a)(2) and (c)(1) of section 5312 of title 31,
United States Code, except that the term shall include only a
financial institution any part of which is located inside any
State or territory of the United States, the District of
Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth
of the Northern Mariana Islands, or the United States Virgin
Islands.''.
[[Page S3416]]
(c) National Security Letter Authority for Certain Consumer
Report Records.--
(1) In general.--Section 626 of the Fair Credit Reporting
Act (15 U.S.C. 1681u) is amended--
(A) by striking the section heading and inserting the
following:
``Sec. 626. National Security Letters for certain consumer
report records'';
(B) by striking subsections (a) through (d) and inserting
the following:
``(a) Authorization.--
``(1) In general.--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 Special Agent in Charge in a Bureau field
office, may issue in writing and cause to be served on a
consumer reporting agency a National Security Letter
requiring the production of--
``(A) the name of a consumer;
``(B) the current and former address of a consumer;
``(C) the current and former places of employment of a
consumer; and
``(D) the name and address of any financial institution (as
that term is defined in section 1101 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3401)) at which a
consumer maintains or has maintained an account, to the
extent that the information is in the files of the consumer
reporting agency.
``(2) Limitation.--A National Security Letter issued under
this subsection may not require the production of a consumer
report.
``(b) National Security Letter Requirements.--
``(1) In general.--A National Security Letter issued under
subsection (a) shall--
``(A) be subject to the requirements of subsections (b)
through (f) of section 2709 of title 18, United States Code,
in the same manner and to the same extent as those provisions
apply with respect to a request under section 2709(b) of
title 18, United States Code, to a wire or electronic
communication service provider; and
``(B) include 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) to obtain foreign intelligence
information not concerning a United States person or to
protect against international terrorism or clandestine
intelligence activities; and
``(ii) pertain to--
``(I) a foreign power or an agent of a foreign power;
``(II) the activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
``(III) an individual in contact with, or known to, a
suspected agent of a foreign power.
``(2) Reporting.--On a semiannual basis the Director of the
Federal Bureau of Investigation shall fully inform the Select
Committee on Intelligence, the Committee on the Judiciary,
and the Committee on Banking, Housing, and Urban Affairs of
the Senate and the Permanent Select Committee on
Intelligence, the Committee on the Judiciary, and the
Committee on Financial Services of the House of
Representatives, concerning all requests made under
subsection (a).
``(3) Definitions.--For purposes of this subsection, the
terms `agent of a foreign power', `international terrorism',
`foreign intelligence information', and `United States
person' have the same meanings as in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).'';
(C) by striking subsections (f) through (h); and
(D) by redesignating subsections (e) and (i) through (m) as
subsections (c) through (h), respectively.
(2) Repeal.--Section 627 of the Fair Credit Reporting Act
(15 U.S.C. 1681v) is repealed.
(d) Technical and Conforming Amendment.--
(1) Table of sections amendment.--The table of sections for
the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) is
amended by striking the items relating to sections 626 and
627 and inserting the following:
``626. National Security Letters for certain consumer report records.
``627. [Repealed].''.
(2) Conforming amendments.--
(A) Notice requirements.--Section 1109 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3409) is amended by
striking subsection (c).
(B) Title 18, united states code.--Title 18, United States
Code, is amended--
(i) in section 1510(e), by striking ``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 626 of the Fair Credit Reporting Act (15 U.S.C.
1681u), section 1114 of the Right to Financial Privacy Act of
1978 (12 U.S.C. 3414),''; and
(ii) in section 3511--
(I) by striking ``section 1114(a)(5)(A) of the Right to
Financial Privacy Act,'' each place that term appears and
inserting ``section 1114 of the Right to Financial Privacy
Act of 1978 (12 U.S.C. 3414),''; and
(II) by striking ``or section 627(a)'' each place that term
appears.
(C) National security act of 1947.--Section 507(b) of the
National Security Act of 1947 (50 U.S.C. 3106(b)) is
amended--
(i) in paragraph (2), by striking ``section 626(h)(2) of
the Fair Credit Reporting Act (15 U.S.C. 1681u(h)(2)).'' and
inserting ``section 626(b)(2) of the Fair Credit Reporting
Act (15 U.S.C. 1681u(b)(2)).''; and
(ii) in paragraph (3), 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(b)(2) of the
Right to Financial Privacy Act of 1978 (12 U.S.C.
3414(b)(2)).''.
(D) USA patriot act.--
(i) Section 118.--Section 118 of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109-
177; 18 U.S.C. 3511 note) is amended--
(I) in subsection (c)(1)--
(aa) in subparagraph (C), by inserting ``and'' at the end;
(bb) in subparagraph (D), by striking ``; and'' and
inserting a period; and
(cc) by striking subparagraph (E); and
(II) in subsection (d)--
(aa) in paragraph (2), by striking ``Section 1114(a)(5)(A)
of the Right to Financial Privacy Act (12 U.S.C.
3414(a)(5)(A))'' and inserting ``Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414)''; and
(bb) by striking paragraph (5).
(ii) Section 119.--Section 119(g) of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109-
177; 120 Stat. 219) is amended--
(I) in paragraph (2), by striking ``Section 1114(a)(5)(A)
of the Right to Financial Privacy Act (12 U.S.C.
3414(a)(5)(A))'' and inserting ``Section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414)''; and
(II) by striking paragraph (5).
SEC. 502. PUBLIC REPORTING ON NATIONAL SECURITY LETTERS.
Section 118(c) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 18 U.S.C.
3511 note), as amended by section 501(d)(2)(D)(i), is further
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) Content.--
``(A) In general.--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) Exception.--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).''.
TITLE VI--REPORTING FISA ORDERS AND NATIONAL SECURITY LETTERS
SEC. 601. THIRD-PARTY REPORTING OF FISA ORDERS AND NATIONAL
SECURITY LETTERS.
(a) In General.--Each electronic service provider may
report information to the public in accordance with this
section about requests and demands for information made by
any Government entity under a surveillance law, and is exempt
in accordance with subsection (d) from liability with respect
to that report, even if such provider would otherwise be
prohibited by a surveillance law from reporting that
information.
(b) Periodic Aggregate Reports.--An electronic service
provider may report such information not more often than
quarterly and only to the following extent:
(1) Estimate of numbers of demands and requests made.--The
report may reveal an estimate of the number of such demands
and requests made during the period to which the report
pertains.
(2) Estimate of numbers of demands and requests complied
with.--The report may reveal an estimate of the numbers of
such demands and requests the service provider complied with
during the period to which the report pertains, regardless of
when the demands or requests were made.
(3) Estimate of number of users or accounts.--The report
may reveal an estimate of the numbers of users or accounts,
or both, of the service provider, for which information was
demanded, requested, or provided during the period to which
the report pertains.
(c) Special Rules for Reports.--
(1) Level of detail by authorizing surveillance law.--Any
estimate disclosed under this section may be an overall
estimate or broken down by categories of authorizing
surveillance laws or by provisions of authorizing
surveillance laws.
(2) Level of detail by numerical range.--Each estimate
disclosed under this section shall be rounded to the nearest
100. If an estimate is zero, an electronic service provider
may report the estimate as zero.
(3) Report may be broken down by periods not less than
calendar quarters.--For any reporting period, the provider
may break
[[Page S3417]]
down the report by calendar quarters or any other time
periods greater than a calendar quarter.
(d) Limitation on Liability.--An electronic service
provider making a report that the provider reasonably
believes in good faith is authorized by this section is not
criminally or civilly liable in any court for making that
report.
(e) Rule of Construction.--Nothing in this section shall be
construed to prohibit disclosures other than those authorized
by this section.
(f) Definitions.--In this section:
(1) The term ``electronic service provider'' means a
provider of an electronic communications service (as that
term is defined in section 2510 of title 18, United States
Code) or a provider of a remote computing service (as that
term is defined in section 2711 of title 18, United States
Code).
(2) The term ``surveillance law'' means any provision of
any of the following:
(A) The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).
(B) Section 802(a) of the National Security Act of 1947 (50
U.S.C. 3162(a)).
(C) Section 2709 of title 18, United States Code.
(D) Section 1114 of the Right to Financial Privacy Act of
1978 (12 U.S.C. 3414).
(E) Subsections (a) or (b) of section 626 of the Fair
Credit Reporting Act (15 U.S.C. 1681u).
SEC. 602. GOVERNMENT REPORTING OF FISA ORDERS.
(a) Electronic Surveillance.--Section 107 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1807) is
amended--
(1) by redesignating subsections (a) and (b) as paragraphs
(1) and (2), respectively;
(2) in the matter preceding paragraph (1) (as redesignated
by paragraph (1) of this subsection)--
(A) by striking ``In April'' and inserting ``(a) In
April''; and
(B) by striking ``Congress'' and inserting ``the Select
Committee on Intelligence and the Committee on the Judiciary
of the Senate and the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives'';
(3) in subsection (a) (as designated by paragraph (2) of
this subsection)--
(A) in paragraph (1) (as redesignated by paragraph (1) of
this subsection), by striking ``and'' at the end;
(B) in paragraph (2) (as so redesignated), by striking the
period at the end and inserting a semicolon; and
(C) by adding at the end the following new paragraphs:
``(3) the total number of individuals who were subject to
electronic surveillance conducted under an order entered
under this title, rounded to the nearest 100; and
``(4) the total number of United States persons who were
subject to electronic surveillance conducted under an order
entered under this title, rounded to the nearest 100.''; and
(4) by adding at the end the following new subsection:
``(b)(1) Each report required under subsection (a) shall be
submitted in unclassified form.
``(2) Not later than 7 days after a report is submitted
under subsection (a), the Attorney General shall make such
report publicly available.''.
(b) Pen Register and Trap and Trace Devices.--Section 406
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1846) is amended--
(1) in subsection (b)--
(A) in paragraph (2), by striking ``and'' at the end;
(B) in paragraph (3), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following new paragraphs:
``(4) a good faith estimate of the total number of
individuals whose electronic or wire communications
information was obtained through the use of pen register or
trap and trace devices authorized under an order entered
under this title, rounded to the nearest 100; and
``(5) a good faith estimate of the total number of United
States persons whose electronic or wire communications
information was obtained through the use of a pen register or
trap and trace devices authorized under an order entered
under this title, rounded to the nearest 100.''; and
(2) by adding at the end the following new subsection:
``(c)(1) Each report required under subsection (b) shall be
submitted in unclassified form.
``(2) Not later than 7 days after a report is submitted
under subsection (b), the Attorney General shall make such
report publicly available.''.
(c) Access to Certain Business Records.--Section 502 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1862) is amended--
(1) in subsection (b)(3), by adding at the end the
following new subparagraphs:
``(F) Records concerning electronic communications.
``(G) Records concerning wire communications.''; and
(2) in subsection (c)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking ``and'' at the end;
(ii) in subparagraph (B), by striking the period at the end
and inserting a semicolon; and
(iii) by adding at the end the following new subparagraphs:
``(C) a good faith estimate of the total number of
individuals whose tangible things were produced under an
order entered under section 501, rounded to the nearest 100;
and
``(D) a good faith estimate of the total number of United
States persons whose tangible things were produced under an
order entered under section 501, rounded to the nearest
100.''; and
(B) by adding at the end the following new paragraph:
``(3) Not later than 7 days after the date on which a
report is submitted under paragraph (1), the Attorney General
shall make such report publicly available.''.
(d) Additional Procedures Regarding Certain Persons Outside
the United States.--Section 707 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881f) is amended by
adding at the end the following new subsection:
``(c) Additional Annual Report.--
``(1) Report required.--In April of each year, the Attorney
General shall submit to the congressional intelligence
committees and the Committees on the Judiciary of the House
of Representatives and the Senate a report setting forth with
respect to the preceding year--
``(A) the total number of--
``(i) directives issued under section 702;
``(ii) orders granted under section 703; and
``(iii) orders granted under section 704;
``(B) good faith estimates of the total number of
individuals, rounded to the nearest 100, whose electronic or
wire communications or communications records were collected
pursuant to--
``(i) an order granted under section 703; and
``(ii) an order granted under section 704; and
``(C) good faith estimates of the total number, rounded to
the nearest 100, of United States persons whose electronic or
wire communications or communications records were collected
pursuant to--
``(i) an order granted under section 703; and
``(ii) an order granted under section 704.
``(2) Form.--Each report required under paragraph (1) shall
be submitted in unclassified form.
``(3) Public availability.--Not later than 7 days after the
date on which a report is submitted under paragraph (1), the
Attorney General shall make such report publicly
available.''.
TITLE VII--OTHER MATTERS
SEC. 701. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
SUBPOENA AUTHORITY.
Section 1061(g) of the Intelligence Reform and Terrorism
Prevention Act of 2004 (42 U.S.C. 2000ee(g)) is amended--
(1) in paragraph (1)(D), by striking ``submit a written
request to the Attorney General of the United States that the
Attorney General'';
(2) by striking paragraph (2); and
(3) by redesignating paragraphs (3) and (4) as paragraphs
(2) and (3).
SEC. 702. SCOPE OF LIABILITY PROTECTION FOR PROVIDING
ASSISTANCE TO THE GOVERNMENT.
Section 802 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1885a) is amended--
(1) in subsection (a), in the matter preceding paragraph
(1), by inserting ``and except as provided in subsection
(j),'' after ``law,''; and
(2) by adding at the end the following:
``(j) Violation of User Agreements.--Subsection (a) shall
not apply to assistance provided by a person if the provision
of assistance violates a user agreement, including any
privacy policy associated with the user agreement, in effect
at the time the assistance is provided between the person and
the person relating to whom the assistance was provided.''.
______