[Senate Report 111-92]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 177
111th Congress                                                   Report
                                 SENATE
 1st Session                                                     111-92

======================================================================



 
            THE USA PATRIOT ACT SUNSET EXTENSION ACT OF 2009

                                _______
                                

                October 28, 2009.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 1692]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 1692), to extend the sunset of certain provisions of 
the USA PATRIOT Act and the authority to issue national 
security letters, and for other purposes, having considered the 
same, reports favorably thereon, with an amendment, and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of The USA PATRIOT Act Sunset Extension Act 
     of 2009..........................................................1
 II. History of the Bill and Committee Consideration..................3
III. Section-by-Section Summary of the Bill...........................7
 IV. Congressional Budget Office Cost Estimate.......................10
  V. Regulatory Impact Evaluation....................................11
 VI. Conclusion......................................................11
VII. Additional and Minority Views...................................13
VIII.Changes to Existing Law Made by the Bill, as Reported...........33


 I. Background and Purpose of the USA PATRIOT Act Sunset Extension Act 
                                of 2009

    Congress acted swiftly after the September 11, 2001, 
attacks to pass the USA PATRIOT Act and to provide the 
Government with the tools necessary to pursue terrorists and 
others that would do harm to our country. In order to ensure 
that the increased information-gathering powers of the 
Government would be implemented appropriately, however, 
Congress also included in the USA PATRIOT Act additional 
oversight measures and sunsets on some of the surveillance 
authorities with the greatest potential to impact U.S. 
citizens.
    During the 109th Congress, a number of the expiring 
provisions of the USA PATRIOT Act were considered for 
reauthorization. The majority of the provisions subject to a 
sunset were made permanent. However, many Senators--including a 
number on the Senate Committee on the Judiciary--expressed 
continuing concerns with the broad scope of information-
gathering powers afforded the Government. These Senators sought 
additional protections against possible infringements on the 
constitutional rights and civil liberties of U.S. persons. In 
particular, concerns were raised about sections 206 and 215 of 
the USA PATRIOT Act, which authorized ``roving'' wiretaps and 
orders for business records under the Foreign Surveillance 
Intelligence Act (FISA). The ``lone wolf'' authority under FISA 
was also viewed as controversial by some. Accordingly, the USA 
PATRIOT Improvement and Reauthorization Act of 2005 included a 
new sunset of December 31, 2009 for these three provisions. The 
USA PATRIOT Improvement and Reauthorization Act of 2005 also 
mandated that the Department of Justice, Office of Inspector 
General complete comprehensive audits on the Government's use 
of national security letters (NSLs) and requests for production 
of business records under section 215 of the USA PATRIOT Act.
    The sunset and auditing measures required by that law 
proved that continuing congressional oversight and procedural 
protections are vital to ensuring that the Government's powers 
are exercised in a manner that is consistent with the 
constitutional rights and civil liberties of Americans. In 2007 
and 2008, the Department of Justice, Office of Inspector 
General issued reports on the use of NSLs and requests for 
section 215 orders for business records by the Federal Bureau 
of Investigation, and found numerous instances of over-
collection of information. In reports on the use of NSLs, the 
Inspector General cited faulty recordkeeping, poor tracking 
systems, and both misuse and abuse of the NSL authority.
    The USA PATRIOT Act Sunset Extension Act of 2009, S. 1692, 
as amended and reported by the Committee, and as described more 
fully below, strikes a reasonable balance between the 
Government's need to maintain the tools necessary for effective 
counterterrorism investigations with the civil liberties and 
constitutional protections so important to all Americans. The 
bill extends to December 31, 2013 the sunset on the three 
expiring provisions: ``roving'' wiretaps, section 215 orders 
for business records, and the ``lone wolf'' provision. It also 
imposes a new four-year sunset on the use of NSLs. As set forth 
more fully below, the bill also strengthens oversight and 
judicial review, and addresses constitutional concerns about 
NSL nondisclosure orders raised by the Court of Appeals for the 
Second Circuit in the Doe v. Mukasey decision.
    A September 14, 2009 letter to this Committee from the 
Department of Justice acknowledged that: ``The oversight 
provided since 2001 and the specific oversight provisions that 
were added to the statute in 2006 have helped to ensure the 
authority is being used as intended.'' S. 1692 as reported 
expands oversight by mandating new audits by the Department of 
Justice, Office of Inspector General, requiring new court-
approved minimization procedures on surveillance authorities, 
and including more detailed public reporting on the use of 
surveillance under FISA.

          II. History of the Bill and Committee Consideration


                      A. INTRODUCTION OF THE BILL

    The USA PATRIOT Act Sunset Extension Act of 2009 was 
introduced as S. 1692 on September 22, 2009 by Senators Leahy, 
Cardin, and Kaufman. Senator Sanders joined as a cosponsor on 
September 25, 2009. Prior to the first executive business 
meeting at which the bill was debated, Senator Leahy developed 
a substitute amendment with Senator Feinstein. The substitute 
was laid down as the pending amendment in an executive business 
meeting on October 1, 2009. The substitute amendment was 
cosponsored by Senators Leahy, Feinstein, Cardin, Kaufman, 
Sanders, Whitehouse, and Klobuchar.

                       B. COMMITTEE CONSIDERATION

1. Hearing

    The Committee held a hearing titled, ``Reauthorizing the 
USA PATRIOT Act: Ensuring Liberty and Security,'' on September 
23, 2009. During the first panel, testimony was received from 
David Kris, Assistant Attorney General for the National 
Security Division of the Department of Justice, and Glenn Fine, 
the Inspector General of the Department of Justice.
    Mr. Kris requested that the three expiring provisions of 
the USA PATRIOT Act be reauthorized. The three provisions, 
which are presently set to expire on December 31, 2009, are the 
roving wiretap authority, the ``lone wolf'' surveillance 
authority, and the provision authorizing orders for business 
records and other tangible things. Mr. Kris stated that the 
Department would be pleased to work with Congress as it 
considered other changes to law, but presently was not able to 
take a position on S. 1692. Mr. Kris' testimony reflected a 
letter sent by Ronald Weich, Assistant Attorney General for 
Legislative Affairs, to Chairman Leahy on September 14, 2009, 
which is available upon request.
    Mr. Fine's testimony summarized the findings of audits 
conducted by the Office of the Inspector General on the use of 
NSLs and orders for business records. These audits were 
required by sections 119 and 106A of the USA PATRIOT 
Improvement and Reauthorization Act of 2005 (Pub. L. No. 109-
177).
    During the second panel, testimony was received from three 
experts in national security law. Suzanne Spaulding, principal 
of the Bingham Consulting Group, testified in favor of reforms 
to the three expiring provisions of the USA PATRIOT Act. 
Kenneth Wainstein, a partner at O'Melveny & Myers, stated that 
the expiring provisions contained adequate safeguards and 
should be reauthorized. Lisa Graves, executive director of the 
Center for Media & Democracy, critiqued the use of orders for 
business records and NSLs and recommended that higher standards 
for issuance of such orders be enacted. Written testimony is 
available at http:// judiciary.senate.gov/hearings/
hearing.cfm?id=4062. 
    Additional material was submitted by the Vermont Library 
Association, the American Association of Law Libraries, the 
Constitution Project, and the American Civil Liberties Union.

2. Executive business meetings

    The bill was placed on the Committee's agenda for 
consideration on September 24, 2009. It was held over on that 
date.
    On October 1, 2009, the Committee on the Judiciary 
considered S. 1692 during an executive business meeting. 
Chairman Leahy offered a manager's amendment, in the nature of 
a complete substitute, which was adopted by unanimous consent 
and subject to amendment. The substitute was cosponsored by 
Senators Leahy, Feinstein, Cardin, Kaufman, Sanders, 
Whitehouse, and Klobuchar.
    The substitute amendment made a number of clarifying 
changes and other modifications to S. 1692 as introduced. 
First, the sunset on NSLs was modified such that rather than 
fully expiring on December 31, 2013, the NSL authority would 
revert to the standards in law prior to the enactment of the 
2001 PATRIOT Act. The substitute strikes the renewable one-year 
time limit on nondisclosure orders for NSLs to allow a 
recipient of a nondisclosure order to challenge it in court at 
any time. Under the substitute amendment, the court may set the 
terms of nondisclosure as appropriate. The substitute ensures 
that the FBI will prepare a written statement of facts showing 
relevancy to an authorized investigation before an NSL can be 
issued. It also clarifies that the statement will be retained 
by the FBI, and not issued to the NSL recipient. It will be 
available for internal review and audits by the Inspector 
General.
    The substitute amendment struck the three-part standard for 
pen trap and trace orders, and for section 215 orders, except 
in the case of library records.
    The substitute amendment was adopted by unanimous consent. 
Senators Feingold, Durbin and Specter each requested that they 
be recorded as voting ``no.''
    Senator Durbin offered an amendment to strike the standard 
in S. 1692 for issuing a section 215 order for business records 
and other tangible things and replace it with a three-part 
standard. The amendment was rejected by a roll call vote.
    The vote record is as follows:
    Tally: 4 Yeas, 15 Nays
    Yeas (4): Feingold (D-WI), Durbin (D-IL), Cardin (D-MD), 
Specter (D-PA).
    Nays (15): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY), 
Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-DE), Franken 
(D-MN), Sessions (R-AL), Hatch (R-UT), Grassley (R-IA), Kyl (R-
AZ), Graham (R-SC), Cornyn (R-TX), Coburn (R-OK), Leahy (D-VT).
    Senator Feingold offered an amendment to S. 1692 to modify 
the presumptive time period for delayed notice search warrant 
from 30 days, which is the period under current law, to seven 
days. The amendment was accepted by a roll call vote.
    The vote record is as follows:
    Tally: 12 Yeas, 7 Nays
    Yeas (12): Kohl (D-WI), Feinstein (D-CA), Feingold (D-WI), 
Schumer (D-NY), Durbin (D-IL), Cardin (D-MD), Whitehouse (D-
RI), Klobuchar (D-MN), Kaufman (D-DE), Specter (D-PA), Franken 
(D-MN), Leahy (D-VT).
    Nays (7): Sessions (R-AL), Hatch (R-UT), Grassley (R-IA), 
Kyl (R-AZ), Graham (R-SC), Cornyn (R-TX), Coburn (R-OK).
    Senators Kyl and Schumer offered an amendment which would 
have amended the criminal identity theft provisions in title 18 
of the United States Code to make it a Federal crime to produce 
or use a false travel document. The amendment was withdrawn by 
Senator Kyl.
    Senator Sessions offered a motion to strike the sunset 
provision for NSLs from S. 1692. This motion was rejected by a 
roll call vote.
    The vote record is as follows:
    Tally: 6 Yeas, 13 Nays
    Yeas (6): Sessions (R-AL), Hatch (R-UT), Grassley (R-IA), 
Kyl (R-AZ), Graham (R-SC), Cornyn (R-TX).
    Nays (13): Kohl (D-WI), Feinstein (D-CA), Feingold (D-WI), 
Schumer (D-NY), Durbin (D-IL), Cardin (D-MD), Whitehouse (D-
RI), Klobuchar (D-MN), Kaufman (D-DE), Specter (D-PA), Franken 
(D-MN), Coburn (R-OK), Leahy (D-VT).
    Senator Kyl offered an amendment which would have amended 
the Classified Information Protection Act (CIPA) in a variety 
of ways, including authorizing interlocutory appeals for any 
order for access to classified information, allowing CIPA 
requests to be made ex parte, and limiting the ability of the 
court to decide when defense counsel may review classified 
evidence. The amendment was withdrawn by Senator Kyl.
    On October 8, 2009, the Committee on the Judiciary resumed 
consideration of S. 1692.
    Senator Sessions offered a package of amendments to S. 1692 
that would make technical fixes and add clarifying language to 
address concerns about the effectiveness and efficiency of 
certain provisions. The amendments are as follows:
    Senator Sessions offered an amendment to clarify that 
minimization procedures for pen register and trap and trace 
orders apply to information ``known to concern'' U.S. persons. 
This modification clarifies that investigators are expected to 
apply the required minimization protections based on their 
knowledge at the time about the subject of an investigation.
    Senator Sessions offered an amendment to provide that if 
the conditions set forth for a nondisclosure order on NSLs are 
met, judges shall issue the order.
    Senator Sessions offered an amendment to limit the 
Government's duty to notify NSL recipients when nondisclosure 
orders are no longer required to those instances where a 
recipient has previously challenged the order.
    Senator Sessions offered a perfecting amendment that makes 
the description of library records consistent with the language 
used in current law under subsection (a) of Section 215 and 
clarifies when library records are entitled to more deferential 
review.
    Senator Sessions offered an amendment that makes technical 
fixes to minimization procedures for pen register and trap and 
trace orders to clarify the intent of this provision.
    The package of amendments offered by Senator Sessions was 
adopted by voice vote.
    Senator Durbin offered an amendment to require a three-part 
standard for issuing NSLs. The amendment failed by a roll call 
vote.
    The vote record is as follows:
    Tally: 4 Yeas, 15 Nays
    Yeas (4): Feingold (D-WI), Durbin (D-IL), Cardin (D-MD), 
Specter (D-PA).
    Nays (15): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY), 
Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-DE), Franken 
(D-MN), Sessions (R-AL), Hatch (R-UT), Grassley (R-IA), Kyl (R-
AZ), Graham (R-SC), Cornyn (R-TX), Coburn (R-OK), Leahy (D-VT).
    Senator Kyl offered an amendment to strike the standard of 
``appropriate weight'' that the court must give to the 
Government's request for a nondisclosure order for NSLs and 
instead require the court to afford the Government's request 
for such a nondisclosure order ``substantial weight.'' This 
amendment was adopted by a voice vote.
    Senator Feingold offered an amendment to require the 
Attorney General to issue minimization procedures for the use 
of NSLs within 180 days of the enactment of the bill. The 
amendment was agreed to by voice vote.
    Senator Kyl offered an amendment to strike ``specific and 
articulable facts'' from the written statement that the FBI or 
other agency issuing an NSL must prepare to show that the 
information it is requesting is relevant to its investigation. 
The amendment was modified to only strike ``and articulable'' 
from the statement of facts. The amendment as modified was 
agreed to by a roll call vote.
    The vote record is as follows:
    Tally: 14 Yeas, 4 Nays, 1 Pass
    Yeas (14): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY), 
Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-DE), Franken 
(D-MN), Sessions (R-AL), Grassley (R-IA), Kyl (R-AZ), Graham 
(R-SC), Cornyn (R-TX), Coburn (R-OK), Leahy (D-VT) .
    Nays (4): Feingold (D-WI), Durbin (D-IL), Cardin (D-MD), 
Hatch (R-UT).
    Pass (1): Specter (D-PA).
    Senator Feingold offered an amendment to prevent the 
Government from using the warrantless collection authorities of 
the FISA Amendments Act to conduct ``bulk collection.'' Senator 
Feingold withdrew the amendment.
    Senator Feingold offered an amendment to allow the ``lone 
wolf'' provision to expire on December 31, 2009. This amendment 
failed on a roll call vote.
    The vote record is as follows:
    Tally: 3 Yeas, 16 Nays
    Yeas (3): Feingold (D-WI), Durbin (D-IL), Specter (D-PA).
    Nays (16): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY), 
Cardin (D-MD), Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-
DE), Franken (D-MN), Sessions (R-AL), Hatch (R-UT), Grassley 
(R-IA), Kyl (R-AZ), Graham (R-SC), Cornyn (R-TX), Coburn (R-
OK), Leahy (D-VT).
    The Committee then voted to report the USA PATRIOT Act 
Sunset Extension Act, as amended, favorably to the Senate. The 
Committee proceeded by roll call vote as follows:
    Tally: 11 Yeas, 8 Nays
    Yeas (11): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY), 
Cardin (D-MD), Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-
DE), Franken (D-MN), Kyl (R-AZ), Cornyn (R-TX), Leahy (D-VT).
    Nays (8): Feingold (D-WI), Durbin (D-IL), Specter (D-PA), 
Sessions (R-AL), Hatch (R-UT), Grassley (R-IA), Graham (R-SC), 
Coburn (R-OK).

              III. Section-by-Section Summary of the Bill


Section 1. Short title

    This section provides that the legislation may be cited as 
the ``USA PATRIOT Act Sunset Extension Act of 2009.''

Section 2. Sunsets

    This section extends the sunsets on the provisions for 
``lone wolf,'' roving wiretaps and orders for tangible things 
from December 31, 2009 to December 31, 2013. This section 
establishes a sunset of December 31, 2013, on the use of NSLs. 
This section also makes conforming amendments to FISA and other 
applicable laws consistent with the sunsets.

Section 3. Factual basis for and issuance of orders for access to 
        tangible things

    This section modifies the standard for obtaining a court 
order for tangible things under FISA. Current law requires the 
Government to submit a statement of facts showing reasonable 
grounds to believe that the tangible things sought are relevant 
to an authorized investigation. However, current law states 
that the tangible things sought are presumptively relevant if 
the Government shows that they pertain to (a) a foreign power 
or an agent of a foreign power, (b) the activities of a 
suspected agent of a foreign power who is the subject of such 
an authorized investigation, or (c) an individual in contact 
with, or known to, an agent of a foreign power who is the 
subject of such authorized investigation. This section removes 
the presumption of relevance described above. It requires the 
Government to provide a statement of the facts and 
circumstances relied upon by the applicant to justify the 
applicant's belief that the tangible things sought are 
relevant. This ensures that the Government is presenting a 
thorough statement of facts to the court and strengthens 
judicial oversight.
    Section 3(a)(2)(A) alters certain requirements with respect 
to applications made pursuant to 50 U.S.C. 1861. These changes 
are not intended to affect or restrict any activities approved 
by the FISA court under existing statutory authorities. Rather, 
this provision is intended to ensure that in applications made 
pursuant to 50 U.S.C. 1861, the government must submit a 
statement of the facts it relies on to support its belief that 
the items or information sought are relevant to an authorized 
investigation and that such relevance is not to be presumed 
based on the presence of certain factors.
    To obtain library circulation records or patron lists, the 
Government must meet a higher standard. That standard is a 
statement of facts showing reasonable grounds to believe the 
tangible things are relevant to an authorized investigation and 
pertain to (a) an agent of a foreign power, (b) the activities 
of a suspected agent, or (c) an individual in contact with or 
known to a suspected agent of foreign power subject to the 
investigation.
    This section also requires court review of minimization 
procedures.

Section 4. Factual basis for and issuance of orders for pen registers 
        and trap and trace devices for foreign intelligence purposes

    Under current law, in order to obtain a FISA pen/trap, the 
Government must certify that the information sought is merely 
foreign intelligence information or is relevant to an 
investigation to protect against terrorism. The bill modifies 
the standard for obtaining a pen/trap to require the Government 
to provide a statement of the facts and circumstances relied 
upon by the applicant to justify the applicant's belief that 
the information likely to be obtained is relevant. This ensures 
that the Government is presenting a thorough statement of facts 
to the court and strengthens judicial oversight.
    Section 4(a)(2)(A) alters certain requirements with respect 
to applications made pursuant to 50 U.S.C. 1842. These changes 
are not intended to affect or restrict any activities approved 
by the FISA court under existing statutory authorities. Rather, 
this provision is intended to ensure that in applications made 
pursuant to 50 U.S.C. 1842, the government must submit a 
statement of the facts it relies on to support its belief that 
the items or information sought are relevant to an authorized 
investigation.
    This section also requires minimization procedures, which 
are not required under current law, and makes those procedures 
subject to court review. Section 4(b) governs procedures for 
minimization of the retention and dissemination of information 
obtained pursuant to 50 U.S.C. 1842 where appropriate in 
exceptional circumstances. This provision is intended to 
provide a statutory footing for the existing practice whereby 
specialized minimization procedures are implemented in certain 
limited circumstances under FISA court authorization and 
oversight.

Section 5. Limitations on disclosure of National Security Letters

    This section authorizes the Government to prohibit 
disclosure of the receipt of an NSL (there are four different 
statutes that authorize NSLs) where a high level official 
certifies that disclosure may result in danger to the national 
security, interference with an investigation, or danger to the 
life or safety of a person.
    The recipient of an NSL nondisclosure order may challenge 
the nondisclosure at any time by notifying the Government of a 
desire to not comply. Section 6 (below) details the process for 
doing so.

Section 6. Judicial review of FISA orders and NSL nondisclosure orders

    This section allows the recipient of a section 215 order 
for tangible things to challenge the order itself and any 
nondisclosure order associated with it. Current law requires a 
recipient to wait a year before challenging a nondisclosure 
order. This section repeals that one-year mandated delay before 
a recipient of an order for tangible things can challenge such 
a nondisclosure order in court. It also repeals a provision 
added to the law in 2006 stating that a conclusive presumption 
in favor of the Government shall apply where a high level 
official certifies that disclosure of the order for tangible 
things would endanger national security or interfere with 
diplomatic relations.
    This section also corrects the constitutional defects in 
the issuance of nondisclosure orders on NSLs as found by the 
Second Circuit Court of Appeals in Doe v. Mukasey, 07-4943-cv 
(December 15, 2008), and adopts the concepts suggested by that 
court for a constitutionally sound process. Id. at pp. 39-40. 
The bill allows the recipient of an NSL with a nondisclosure 
order to notify the Government at any time that it wishes to 
challenge the nondisclosure order. The Government then has 30 
days to seek a court order in federal district court to compel 
compliance with the nondisclosure order. The court has 
authority to set the terms of a nondisclosure order as 
appropriate to the circumstances, but must afford substantial 
weight to the Government's argument in favor of nondisclosure. 
The Government must notify any entity that challenges a 
nondisclosure order when the need for nondisclosure is 
terminated.
    The bill requires FISA court approval of minimization 
procedures, similar to the court approval required for other 
FISA authorities such as wiretaps, physical searches, and pen 
register and trap and trace devices.

Section 7. Certification for access to telephone toll and transactional 
        records

    This section codifies current FBI practice in issuing an 
NSL, and augments oversight and transparency. Current law 
requires only that an official certify that the information 
requested in the NSL is relevant to, or sought for, an 
authorized investigation to protect against international 
terrorism or clandestine intelligence activities, or for a law 
enforcement investigation, counterintelligence inquiry, or 
security determination. This section adds a requirement that 
the FBI retain a statement of specific facts showing that the 
information sought is relevant to such an authorized 
investigation. This statement of specific facts will not be 
included in the NSL itself, but will be available for internal 
review and Office of Inspector General audits.

Section 8. Public reporting on National Security Letters

    This section requires annual public reporting on the number 
of requests for NSLs. and greater specificity of the types of 
persons targeted (e.g., U.S. persons v. non-U.S. persons).

Section 9. Public reporting on the Foreign Intelligence Surveillance 
        Act

    This section requires annual public reporting of aggregate 
numbers of requests for surveillance that also includes 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.

Section 10. Audits

    This section requires the DOJ Office of Inspector General 
to conduct audits of the use of three surveillance tools: (1) 
orders for tangible things under section 215 of the 2001 
PATRIOT Act, or section 501 of FISA; (2) pen registers and trap 
and trace devices under section 402 of FISA; and (3) the use of 
NSLs. The audits will cover the years 2007 through 2011. The 
scope of such audits includes a comprehensive analysis of the 
effectiveness and use of the investigative authorities provided 
to the Government, including any improper or illegal use of 
such authorities.

Section 11. Delayed notice search warrants

    Current law requires notification of a delayed notice 
search warrant within 30 days. This section requires 
notification of a delayed notice search warrant within seven 
days, or a longer period if justified. In reducing the initial 
period of delayed notice from 30 to 7 days, the Committee does 
not intend to suggest that it would be improper for courts to 
continue to grant extensions of up to 90 days, where 
appropriate, as they do at present.

Section 12. NSL minimization procedures

    Current law does not require minimization procedures be 
established, but the Department was required by law to conduct 
a feasibility study on the matter. The Office of Inspector 
General's audits on NSLs, which found past misuse and abuse of 
the NSL authority, called for minimization procedures to be 
established. This section requires that the Attorney General, 
within 180 days of enactment, establish minimization and 
destruction procedures governing acquisition, retention, and 
dissemination by the FBI of any records received by the FBI in 
response to an NSL.

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 
1692, the following estimate and comparison prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act of 1974:

                                                  October 23, 2009.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1692, the USA 
PATRIOT Act Sunset Extension Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 1692--USA PATRIOT Act Sunset Extension Act of 2009

    CBO estimates that implementing S. 1692 would cost about $5 
million over the 2010-2012 period and less than $500,000 
annually in subsequent years, assuming the availability of 
appropriated funds. Enacting the bill could affect direct 
spending and revenues, but CBO estimates that any such effects 
would not be significant.
    CBO has determined that the provisions of S. 1692 are 
either excluded from review for mandates under the Unfunded 
Mandates Reform Act because they are necessary for national 
security or contain no intergovernmental or private-sector 
mandates.
    The Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism 
(USA PATRIOT) Act of 2001 (Public Law 107-56), the Intelligence 
Reform and Terrorism Prevention Act of 2004 (Public Law 108-
458), and the USA PATRIOT Improvement and Reauthorization Act 
of 2005 (Public Law 109-177) expanded the powers of federal law 
enforcement and intelligence agencies to investigate and 
prosecute terrorist acts. S. 1692 would extend for four years 
certain provisions of those acts that will otherwise expire on 
December 31, 2009. In addition, the bill would modify the laws 
relating to certain investigations of potential terrorist 
activity and require the Department of Justice (DOJ) to prepare 
additional reports and audits relating to those investigations.
    S. 1692 would require the DOJ Inspector General, by 
December 31, 2012, to conduct audits of the department's use of 
certain investigative powers during the 2007-2011 period. Based 
on information from DOJ, we expect that the department would 
need to hire about 10 people to carry out the audits. CBO 
estimates that it would cost about $1 million in fiscal year 
2010, about $2 million annually over the 2011-2012 period, and 
less than $500,000 annually thereafter for DOJ to complete the 
audits and reports required by the bill. Such spending would be 
subject to the availability of appropriated funds.
    Because those prosecuted and convicted under S. 1692 could 
be subject to civil and criminal fines, the federal government 
might collect additional fines if the legislation is enacted. 
Collections of civil fines are recorded in the budget as 
revenues. Criminal fines are recorded as revenues, deposited in 
the Crime Victims Fund, and later spent. CBO expects that any 
additional revenues and direct spending would not be 
significant because of the small number of cases likely to be 
affected.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Peter H. Fontaine, Assistant 
Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that under S. 1692, as reported, 
the Department of Justice would be required to issue 
minimization procedures on NSLs, section 215 orders, and pen 
register and trap and trace devices.

                             VI. Conclusion

    The USA PATRIOT Act Sunset Extension Act of 2009, S. 1692, 
was reported favorably to the Senate with a bipartisan vote 
from the Committee on the Judiciary. The bill provides the 
Government with important tools to prevent terrorist attacks, 
while increasing protections of civil liberties, and affording 
greater respect for constitutional rights than under current 
law. The bill contains vigorous oversight and public reporting 
requirements, new Inspector General audits, and sunsets on four 
controversial provisions. Because three provisions of the USA 
PATRIOT Improvement and Reauthorization Act of 2005 are due to 
expire on December 31, 2009, the Committee recommends swift 
action on S. 1692 as reported.

                   VII. Additional and Minority Views

                              ----------                              


ADDITIONAL VIEWS FROM SENATORS SESSIONS, HATCH, GRASSLEY, KYL, GRAHAM, 
                           CORNYN, AND COBURN

    On September 23, 2009, the Senate Judiciary Committee held 
a hearing entitled, ``Reauthorizing the USA PATRIOT Act: 
Ensuring Liberty and Security,'' at which David Kris, the 
Assistant Attorney General for the National Security Division, 
testified about the importance of the authorities contained in 
the USA PATRIOT Improvement and Reauthorization Act of 2005. 
Underscoring Mr. Kris's testimony, the Department of Justice 
indicted terror suspect Najibullah Zazi just one day after the 
Committee's hearing\1\ for his role in what Attorney General 
Eric Holder has called ``one of the most serious terrorist 
threats to our country since September 11, 2001.''\2\
---------------------------------------------------------------------------
    \1\Press Release, Office of Public Affairs, Department of Justice, 
Najibullah Zazi Indicted for Conspiracy (Sept. 24, 2009), available at 
http://www.justice.gov/opa/pr/2009/September/09-ag-1017.html 
(hereinafter ``Press Release'').
    \2\``Holder: NYC Terror Plot Most Serious Since 9/11,'' Newsday, 
Oct. 6, 2009, available 
at http://www.newsday.com/news/new-york/holder-nyc-terror-plot-most-
serious-since-9-11-1.1505916.
---------------------------------------------------------------------------
    According to the official Department of Justice press 
release accompanying the indictment, Mr. Zazi ``knowingly and 
intentionally conspired with others to use one or more weapons 
of mass destruction, specifically explosive devices, against 
persons or property within the United States.''\3\ The New York 
Times described the government's case against Mr. Zazi as ``a 
set of damning accusations'' that begin ``with explosives 
training in Pakistan, followed by purchases of bomb-making 
materials in Colorado, experiments in a hotel room, and a 
cross-country trip to New York, which the authorities feared 
might have been the target of the attack.''\4\ The facts 
surrounding this terrorist plot become even more alarming in 
light of reports that Mr. Zazi was in contact with senior al 
Qaeda operatives, including Mustafa Abu al-Yazid, the leader of 
al Qaeda in Afghanistan.\5\
---------------------------------------------------------------------------
    \3\Press Release, supra n. 1.
    \4\David Johnston and William K. Rashbaum, ``Rush for Clues Before 
Charges in Terror Case,'' N.Y. Times, Oct. 1, 2009.
    \5\``Zazi Linked to Al Qaeda's Afghan Head,'' CBS News, Oct. 14, 
2009, available at http://www/cbsnews.com/stories/2009/10/14/national/
main5384355.shtml.
---------------------------------------------------------------------------
    As the Zazi case makes clear, the terrorist threat is not 
abating. If anything, today's terrorist organizations are more 
sophisticated, more determined and more aware of our efforts to 
combat their tactics than ever before. As President Obama said 
earlier this month in his October 20 address to the New York 
Joint Terrorism Task Force: ``We all know that we are facing a 
determined adversary. . . . They are resourceful, they are 
resilient, they are still plotting, as we have become all too 
aware.'' Now is not the time to risk weakening the legal 
authorities that our national security professionals rely upon 
every day to detect and prevent attacks.
    PATRIOT Act and FISA authorities have been vital to our 
counterterrorism efforts in recent years. For example, PATRIOT 
Act tools appear to have contributed to last month's arrest of 
Mr. Zazi.\6\ PATRIOT Act authorities also reportedly played a 
role in thwarting the terrorist plot uncovered earlier this 
year in New York, in which four former convicts who converted 
to radical Islam plotted to use explosives to blow up 
synagogues and shoot down an airplane with a surface-to-air 
missile at an Air National Guard base.\7\
---------------------------------------------------------------------------
    \6\``Notice of Intent To Use Foreign Intelligence Surveillance Act 
Information,'' United States v. Najibullah Zazi, U.S. District Court 
for the District of Colorado, Docket No. 09-cr-03001-CBS, September 21, 
2009.
    \7\Cristina Corbin, ``Patriot Act Likely Helped Thwart NYC Terror 
Plot, Security Experts Say,'' FOX News, May 21, 2009, available at 
http://www.foxnews.com/politics/2009/05/21/ security-experts-say-
patriot-act-likely-helped-thwart-nyc-terror-plot/.
---------------------------------------------------------------------------
    These are not new developments. Over the last eight years, 
law enforcement officials have given the PATRIOT Act credit for 
cracking major terrorism cases and preventing attacks 
throughout the country, including in California, New York, 
Texas, Ohio, and Virginia.

                     THE THREE EXPIRING PROVISIONS

    The PATRIOT Act has provided our national security 
investigators and analysts with critical legal authorities they 
need to protect the nation against terrorist threats. Although 
these legal tools were most recently renewed as part of the 
PATRIOT Act reauthorization in 2005 and 2006, three critical 
important provisions of the PATRIOT Act will, without further 
legislative action, no longer be available after December 31, 
2009. These provisions are:

           The ``roving wiretap'' provision, Section 
        206 of the USA PATRIOT Act. This tool allows 
        investigators to follow sophisticated terrorists who 
        are trained to evade detection (for example, by rapidly 
        changing cell phone numbers). This authority protects 
        agents from having to file repetitious court 
        applications to continue an investigation every time a 
        terrorist changes phones. Roving wiretaps have been 
        routinely used in domestic law enforcement for decades.
           The ``business records'' authority, Section 
        215 of the USA PATRIOT Act. This authority allows 
        officials to ask a court for an order to obtain 
        business records in national security terrorism cases. 
        Examining business records often provides key 
        information that assists investigators in solving a 
        wide range of crimes.
           The ``lone wolf'' authority, Section 6001 of 
        the Intelligence Reform and Terrorism Prevention Act. 
        This authority allows intelligence investigations of 
        terrorists who are not connected to a foreign nation or 
        organization. Before 2004, national security officials 
        had to show a court that a target was an agent of a 
        foreign power, or acting on behalf of a foreign power, 
        in order to get permission to monitor him. This was a 
        problem in the case of Zacharias Moussaoui (the 20th 
        hijacker in the 9/11 attacks), when agents did not get 
        a search warrant for his computer because they believed 
        that they could not show that he was an agent of a 
        foreign power.

    A broad bipartisan group of 89 Senators--including then-
Senators Obama and Biden--supported these tools when they voted 
in favor of the PATRIOT Act reauthorization legislation in 
2006. The Department of Justice strongly supports the renewal 
of all three of these measures. In addition to writing to 
Senator Leahy in detail regarding why each of these authorities 
is critical, both David Kris,\8\ the Assistant Attorney General 
for the National Security Division, and FBI Director Robert 
Mueller\9\ have testified before the Judiciary Committee in 
support of renewing the expiring authorities.
---------------------------------------------------------------------------
    \8\See ``Statement of David Kris,'' before the Committee on the 
Judiciary, United States Senate, Sept. 23, 2009, available at http://
judiciary.senate.gov/pdf/09-09-23%20Kris%20Testimony.pdf.
    \9\Carie Johnson, ``FBI Chief Urges Renewal of Patriot Act,'' 
Washington Post, Mar. 26, 
2009, available at http://www.washingtonpost.com/wp-dyn/content/
article/2009/03/25/AR2009032501862.html (calling provisions 
``exceptional tools to promote national security'').
---------------------------------------------------------------------------
    All three of these tools have helped protect the nation 
from terrorist threats and provide our investigators and 
analysts with critical information. In order to continue to 
protect the nation, this Committee's highest priority should be 
to renew these tools. All other issues and controversies should 
be put aside and considered as part of other legislation. As 
some of us have stated previously, we prefer a simple, four-
year renewal of these three authorities. There is no need to 
tie other matters, such as changes to the use of national 
security letters (``NSLs''), to renewal of these important 
provisions.
    We appreciate and are encouraged by this Committee's 
bipartisan commitment in S. 1692 to reauthorize these three 
authorities until 2013. Due in large part to amendments several 
of us offered during the Committee's consideration of this 
measure, we are also encouraged that the Committee-approved 
version of S. 1692 was considerably improved over the previous 
versions circulated. Unfortunately, we remain concerned that 
portions of this bill will substantially weaken the 
Government's ability to protect the nation against terrorism 
and other national security threats.

                   OUR AMENDMENTS TO IMPROVE S. 1692

    As part of the Committee's consideration of S. 1692, 
Senators Sessions and Kyl offered, and the Committee accepted, 
seven amendments to address deficiencies in the legislation.
    First, the Committee adopted an amendment offered by 
Senator Sessions that makes clear that a restriction on the 
distribution of non-public information obtained from pen 
registers only applies to information known to concern U.S. 
persons. Before this amendment was adopted, S. 1692 provided 
that minimization procedures would ``prohibit the dissemination 
of non-publicly available information concerning unconsenting 
United States persons.'' This language was problematic from an 
operational perspective, as investigators frequently do not 
know at an early stage of an investigation whether the 
telephone numbers they are looking at belong to U.S. persons or 
others. The prior language would have required agents to take a 
closer look at each number dialed to determine whether or not 
that number belongs to a U.S. person, simply to comply with the 
procedures. This would have introduced a new privacy concern 
where one did not previously exist. This amendment makes clear 
that the prohibition only applies to those unconsenting U.S. 
persons that are known.
    Second, Senator Sessions offered an amendment adopted by 
the Committee to require courts to issue a NSL nondisclosure 
order if the government meets the required burden. Before this 
amendment was adopted, if the government met the statutory 
burden, the bill stated only that ``the court may issue a 
nondisclosure order . . . .'' (emphasis added). In other words, 
even if the government established that disclosure would result 
in ``a danger to the national security of the United States,'' 
a court could still refuse to enforce the nondisclosure 
requirement. This was problematic from an operational 
perspective. Judges should not have the unfettered discretion 
to refuse to issue nondisclosure orders once the government has 
met its burden. If the government has shown that nondisclosure 
is needed, the order should issue.
    Third, the Committee adopted an amendment offered by 
Senator Sessions that clarifies whom the government must notify 
regarding the termination of an NSL nondisclosure requirement. 
Previously, the bill required the FBI to monitor when ``the 
facts supporting a nondisclosure requirement cease to exist'' 
and notify the recipient that ``the nondisclosure requirement 
is no longer in effect.'' This requirement would have been an 
operational impossibility for the FBI, as it issues thousands 
of NSLs every year. Requiring the FBI to look back on both 
active and cold investigations to keep tabs in every case on 
when nondisclosure is no longer warranted will be a logistical 
nightmare and could lead to compliance problems. This amendment 
altered this requirement by making notification necessary only 
to those entities that had already notified the government that 
they wished to have a court review the nondisclosure 
requirement.
    Fourth, Senator Sessions offered an amendment adopted by 
the Committee that changes the types of records that qualify 
for the new and heightened ``library records'' provisions 
contained in S. 1692. Under the previous language, this higher 
standard applied if the records sought ``pertain[] to'' 
libraries. This language was problematic. A court could 
interpret the ``pertains to'' language very broadly, making the 
job of national security investigators much more difficult. For 
example, a telephone company complying with a Section 215 order 
might believe it has to spend countless hours combing through 
phone records to see if they include the number of a library. 
Similarly, banks might have to do the same to see if bank 
records contain credit card payments for library fines. This 
amendment applies the heightened library standard only where 
``the records sought are the circulation records or patron 
lists of a library.'' It is our understanding that this 
language is supported by the Administration.
    Fifth, the Committee adopted another amendment offered by 
Senator Sessions to address the new minimization requirements 
for pen registers. Under current law, there are no minimization 
requirements for either criminal law or FISA pen registers. 
This is logical, since pen registers by definition do not 
capture content. Instead, they simply gather raw telephone data 
(for example, a list of numbers) that are building blocks of an 
investigation. Before this amendment was adopted, S. 1692 
imposed minimization requirements on pen registers. These 
requirements would have led to considerable operational 
confusion, as both the FISA Court and agents would have 
struggled to apply minimization procedures, designed to protect 
U.S. person information, to data that is not readily 
identifiable as being U.S. person information. It makes sense 
to instead limit these minimization requirements to those cases 
where judges feel privacy interests are particularly at play. 
This amendment removes the mandate that minimization take place 
in the pen register context and instead gives courts the 
discretion to impose minimization requirements in exceptional 
circumstances. It is our understanding that this language is 
supported by the Administration.
    Sixth, Senator Kyl offered an amendment adopted by the 
Committee that addresses that standard of deference a court 
will give to a determination by national security officials 
that the disclosure of an NSL would present a danger to 
national security. Under existing law, such a certification is 
given ``conclusive'' effect, absent a showing of bad faith by 
the certifying official. In Doe v. Mukasey,\10\ the U.S. Court 
of Appeals for the Second Circuit held that this standard was 
too deferential, as ``some demonstration from the Executive 
Branch of the need for secrecy is required in order to conform 
the nondisclosure requirement to First Amendment standards.'' 
However, S. 1692 went way beyond what Doe requires, as it would 
give the certification of national security danger only 
``appropriate weight.'' This language was problematic for a 
variety of reasons, including the fact that ``appropriate 
weight'' is a standard alien to national security 
jurisprudence, and is seemingly malleable to the whims of the 
particular federal judge handling any one case. This amendment 
substitutes an oft-used, familiar standard by requiring a court 
to give ``substantial weight'' to a government certification 
that the disclosure of an NSL would present a danger to 
national security. It is our understanding that this language 
is supported by the Administration.
---------------------------------------------------------------------------
    \10\549 F.3d 861, 882 (2nd Cir. 2008).
---------------------------------------------------------------------------
    Seventh, the Committee adopted an amendment offered by 
Senator Kyl that addresses a provision of the bill that 
requires the FBI to maintain a ``written statement'' for every 
NSL issued. As the bill was drafted, the statement would need 
to contain ``specific and articulable facts'' that justify the 
need for the NSL. Although this sounds like mere recordkeeping, 
the ``specific and articulable facts'' language could have 
caused operational problems. Currently, NSLs are available for 
use in what are defined as ``preliminary investigations'' under 
FBI Guidelines. The problem is that the ``specific and 
articulable facts'' language resembles the standard the FBI 
Guidelines require for a later, more-developed stage in an 
investigation, i.e., what it deems a ``full investigation.'' 
This language was amended to make clear that NSLs are still 
available at the ``preliminary investigation'' stage of a 
national security investigation by the FBI. This amendment, as 
orally amended in markup, kept the requirement for the 
``written statement'' and also kept the substitute bill's 
requirement that such a statement have a basis in ``specific 
facts.'' However, this amendment drops the words ``and 
articulable'' in order to avoid giving the impression that 
Congress was changing the FBI's owns standards for when NSLs 
can be used.

                    SPECIFIC DEFICIENCIES IN S. 1692

    Although these and other amendments improve S. 1692, we 
continue to have reservations regarding this bill. In 
particular, we are concerned that by placing a four-year sunset 
and new and burdensome minimization requirements on NSLs, as 
well as unnecessary burdens on business record requests and 
delayed notice search warrants, this legislation will make it 
more difficult for investigators and analysts to obtain the 
information they need to make the necessary decisions to 
protect the country. Although we have concerns with other parts 
of this legislation, we will focus on these particular 
deficiencies.

Imposing new ``minimization'' procedures on NSLs

    Section 12 of S. 1692 requires the Attorney General to 
issue minimization procedures for NSLs within 180 days of 
enactment of this legislation. At the time the Committee 
adopted this provision via amendment, Members believed the 
minimization procedures were already being considered and 
implemented within the Department of Justice. As the amendment 
sponsor stated during the markup prior to the Committee's vote: 
``What I said was I know of nobody saying we should not do 
this. They are working on it. We are telling them to get it 
done in a timely manner.''\11\ In recent days, however, 
administration officials from the Department of Justice and 
Federal Bureau of Investigations advised Committee staff that 
the procedures the Department is currently drafting for NSLs 
differ significantly from the minimization procedures required 
by Section 12. Accordingly, the Committee's adoption of Section 
12 appears to be based on a misunderstanding.
---------------------------------------------------------------------------
    \11\See Transcript of Executive Business Meeting at 71, Committee 
on the Judiciary, United States Senate, Oct. 8, 2009, available at 
http://www.senate.gov/fplayers/CommPlayer/
commFlashPlayer.cfm?fn=judiciary100809&st=xxx (min. 117:56 to 118:03).
---------------------------------------------------------------------------
    Current law already imposes significant burdens on the 
government in its efforts to obtain records pursuant to NSLs in 
national security and terrorism cases. As noted previously, 
NSLs give national security agencies some of the powers dozens 
of domestic agencies already possess in areas far less critical 
than national security. Indeed, a 2002 study conducted by the 
Department of Justice Office of Legal Policy ``identified 
approximately 335 administrative subpoena authorities existing 
in current law,'' including for agencies ranging from the 
Appalachian Regional Commission to the Commodities Future 
Trading Commission and Environmental Protection Agency.\12\
---------------------------------------------------------------------------
    \12\U.S. Department of Justice Office of Legal Policy, Report to 
Congress on the Use of Administrative Subpoena Authorities by Executive 
Branch Agencies and Entities, May 2002, available at http://
www.justice.gov/archive/olp/rpt_to_congress.htm. See also Testimony of 
Rachel Brand, Principal Deputy Assistant Attorney General, Office of 
Legal Policy, before the United States Senate Judiciary Committee, 
Subcommittee on Terrorism, Technology and Homeland Security, June 22, 
2004.
---------------------------------------------------------------------------
    NSLs are already more difficult to obtain than normal 
subpoenas. Unlike administrative subpoenas, NSLs have to be 
approved by a senior FBI official. Several layers of oversight 
are also built into the system to prevent abuse. For example, 
NSL use is monitored and reviewed by the FBI's Office of 
General Counsel, and by the National Security Law Branch of the 
Justice Department. This assures that there is scrutiny of 
field office use and headquarters oversight of the use of NSLs. 
In addition, the type of information that can be obtained with 
an NSL is limited by law to specific areas, such as telephone 
subscriber information or employment location.
    Minimization requirements should not be applied to early-
stage investigative tools such as NSLs because these types of 
process generally do not result in the collection of the 
contents of communications. Further, investigators often do not 
know whether the information they have obtained is even 
relevant to their investigation. For example, if an agent 
obtained a list of phone numbers, that agent would have no idea 
whether the obtained numbers belonged to U.S. persons or 
others. Minimization could require investigators to take a 
closer look at each number obtained to determine whether or not 
that number belonged to a U.S. person, simply to comply with 
the procedures. This would introduce a new privacy concern 
where one did not previously exist.
    Although minimization requirements were imposed on Section 
215 orders in 2005, the Department of Justice only issued 
thirteen requests for such orders as recently as 2008.\13\ By 
contrast, many more NSLs concerning U.S. persons were issued 
last year.\14\ We have learned in recent days that the 
imposition of minimization procedures on this broadly used and 
important national security tool would have a devastating 
impact on national security investigations, contrary to the 
understanding of Members at the markup of S. 1692.\15\ Current 
reporting requirements, along with zealous Inspector General 
oversight, are sufficient to ensure that NSLs are being used 
appropriately. Requiring the Justice Department to formulate 
and issue NSL minimization procedures within 180 days will 
cause serious operational difficulties for national security 
investigators, particularly in light of all the questions that 
will be raised as to the implementation of the procedures.
---------------------------------------------------------------------------
    \13\See ``FISA Report to Congress: 2008,'' U.S. Dept. of Justice, 
Office of Legislative Affairs, May 14, 2009, at *4 available at http://
www.fas.org/irp/agency/doj/fisa/2008rept.pdf.
    \14\See id.
    \15\See Transcript of Executive Business Meeting at 70-71, 
Committee on the Judiciary, United States Senate, Oct. 8, 2009, 
available at http://www.senate.gov/fplayers/CommPlayer/
commFlashPlayer.cfm?fn=judiciary100809&st=xxx (min. 117:12 to 117:29) 
(Sen. Russ Feingold states, ``I do not know of anybody over there that 
is saying we should not do this. They are working on it. They think we 
ought to do it. The FBI thinks we ought to do it. The Attorney General 
thinks you ought to do it. They just have not gotten it done. We are 
just telling them to get it done. So the notion that somehow this is 
some terrible idea flies in the face of the very people you are often 
quoting as saying this.'').
---------------------------------------------------------------------------

Dramatic Shortening of Period for Delayed Notice Search Warrants

    We are also concerned about Section 3 of S. 1692, which 
would considerably shorten the notification period for delayed 
notice search warrants from thirty days to a mere seven days--
less than a quarter of the time allowed under current law. 
Reducing the time period for delay of search warrant 
notification arbitrarily places disclosure risks into the most 
secret actions a government can engage. The new disclosure 
requirements, if adopted, will force investigators to return to 
the issuing judge less than a week after they first received 
the warrant. Investigators should be spending their time 
bringing offenders to justice, not at the courthouse deluging 
courts with unnecessary paperwork.
    We are concerned that debate during the Committee's markup 
centered on two cases to the exclusion of other case law on 
this issue. In fact, the two cases cited in support of this 
provision predate the original PATRIOT Act by more than a 
decade. In United States v. Freitas,\16\ the U.S. Court of 
Appeals for the Ninth Circuit set as a standard that notice 
must be given within ``a reasonable, but short, time'' and 
ruled that that period could not exceed seven days absent ``a 
strong showing of necessity.'' Four years later, the Second 
Circuit reached a similar conclusion but articulated a 
different standard. In United States v. Villegas,\17\ the court 
held that delay is permissible if investigators show there is 
``good reason'' for the delay. The U.S. Court of Appeals for 
the Second Circuit agreed with the Ninth Circuit that the 
initial delay should not exceed seven days but allowed for 
further delays if each is justified by ``a fresh showing of the 
need for further delay.''
---------------------------------------------------------------------------
    \16\800 F.2d 1451 (9th Cir. 1986).
    \17\899 F.2d 1324 (2d Cir. 1990).
---------------------------------------------------------------------------
    We believe these two cases are outliers. In other 
jurisdictions, courts imposed longer delay periods, if time 
limits were set at all.\18\ The whole point of section 213 of 
the PATRIOT Act (as refined in 2006) was to create a middle-
ground, nationwide standard for delayed notice search warrants. 
There is simply no basis to go back to the time limit that 
existed in a handful of courts prior to the enactment of the 
PATRIOT Act. Furthermore, there is no need to change the law to 
abridge the time allowed for delayed notification. No federal 
court has overturned a post-PATRIOT Act search on the ground 
that the delayed notice standard in section 213 (codified at 18 
U.S.C. 3103a(b)(3)) is unconstitutional under the Fourth 
Amendment.
---------------------------------------------------------------------------
    \18\See, e.g., United States v. Simons, 206 F.3d 392 (4th Cir. 
2000) (45-day delay constitutional); United States v. Hernandez, 07-
60027-CR, 2007 WL 2915856 (S.D. Fla. Oct. 4, 2007) (unpublished) 
(noting there is no similar time limit [to that in Villegas] suggested 
or required in [the 11th] Circuit.'').
---------------------------------------------------------------------------

Sunset on National Security Letters

    Section 2 of S. 1692 places a new and unnecessary four-year 
sunset on the PATRIOT Act amendments made to the national 
security letter statutes. According to Section 2 of S. 1692, on 
December 31, 2013, NSLs may only be issued pursuant to the 
considerably more rigorous standard that existed before the 
enactment of the PATRIOT Act. As a practical matter, this 
sunset will virtually eliminate the use of NSLs.
    NSLs are a valuable tool and have provided investigators 
and analysts with critical information.\19\ Although details on 
NSL use are classified, the Justice Department has reported 
that ``information obtained through NSLs has significantly 
advanced numerous sensitive terrorism and espionage 
investigations and has assisted the FBI in discovering links to 
previously unknown terrorist operatives.''\20\ In its March 
2007 report on NSLs, the Department of Justice Inspector 
General noted that ``[m]any FBI personnel used terms to 
describe NSLs such as `indispensable' or our bread and 
butter.''\21\ As Valerie Caproni, General Counsel of the FBI, 
explained in 2007, ``NSLs have been instrumental in breaking up 
cells like the `Lackawanna Six' and the `Northern Virginia 
Jihad.' Through the use of NSLs, the FBI has traced sources of 
terrorist funding, established telephone linkages that resulted 
in further investigation and arrests, and arrested suspicious 
associates with deadly weapons and explosives. NSLs allow the 
FBI to link terrorists together financially, and pinpoint cells 
and operatives by following the money.''\22\
---------------------------------------------------------------------------
    \19\See e.g. ``FBI Press Conference on DOJ Inspector General's 
Report of Use of National Security Letters,'' FBI, March 9, 2007, 
available at http://www.fbi.gov/pressrel/pressrel07/
nsl_transcript030907.htm (stating ``national security letters are a 
critical tool and are the bread and butter of our investigations.'').
    \20\See ``Statement of Matthew Berry,'' Counselor to the Assistant 
Attorney General, Office of Legal Policy, U.S. Dept. of Justice, before 
the House Subcommittee on Crime, Terrorism, and Homeland Security, May 
26, 2005, at *5, available at http://www.usdoj.gov/olp/pdf/
usa_patriot_act_reauthorization_matthew_berry_testimony.pdf.
    \21\See ``A Review of the Federal Bureau of Investigation's Use of 
National Security Letters,'' U.S. Dept. of Justice, Office of Inspector 
General, March 2007, at xxii, available at http://www.usdoj.gov/oig/
special/s0703b/final.pdf.
    \22\See ``Statement of Valerie Caproni Before the House Committee 
on the Judiciary,'' March 20, 2007, available at http://www.fbi.gov/
congress/congress07/caproni032007.htm.
---------------------------------------------------------------------------
    Section 2 of S. 1692 rescinds these valuable tools by, 
starting in 2013, requiring the government to follow the 
cumbersome pre-
PATRIOT Act NSL standard. Prior to the PATRIOT Act, not only 
did the requested records have to be relevant to an 
investigation, but the FBI also had to have specific and 
articulable facts giving reason to believe that the information 
requested pertained to a foreign power or an agent of a foreign 
power, such as a terrorist or spy. This pre-PATRIOT Act 
requirement kept the FBI from using NSLs to develop evidence at 
the early stages of an investigation, which is precisely when 
they are the most useful, and often prevented investigators 
from acquiring records that were relevant to an ongoing 
international terrorism or espionage investigation.
    In 2005, Matthew Berry, Counselor to the Assistant Attorney 
General for the Office of Legal Policy, provided this example 
of the problems caused by the old standard:

          Let's say that post-2001 and this has happened--you 
        capture a terrorist, and on the terrorist's computer 
        you have a series of phone numbers. Any investigator 
        worth his or her salt would want to take those phone 
        numbers and figure out the subscriber information, 
        whose phone numbers they are, and in many cases toll 
        billing records, . . . what numbers have been calling 
        that phone number and what numbers has that phone 
        number been calling. . . . Prior to the PATRIOT Act we 
        couldn't use NSLs to obtain that information because we 
        had no idea whatsoever whose phone numbers they were. 
        They could be a terrorist associate's phone numbers. 
        They could be the drycleaner's phone numbers. We needed 
        the basic information to forward the investigation. We 
        couldn't use it for that purpose.''\23\
---------------------------------------------------------------------------
    \23\Testimony of Matthew Berry (Oral), Counselor to the Assistant 
Attorney General, Office of Legal Policy, U.S. Department of Justice, 
before the House Subcommittee on Crime, Terrorism, and Homeland 
Security, May 26, 2005.

    Mr. Berry further explained the benefit of the PATRIOT Act 
amendments to the NSL statutes: ``Now, because the standard is 
relevance, the same standard that we have in criminal 
investigations with grand jury subpoenas, we can obtain that 
information. And I can report . . . that such uses of the NSLs 
have been very valuable to the Department and have allowed us 
to identify terrorist operatives that we previously did not 
know about. So I think that it would be a major, major mistake 
to return back to the prior standard.''\24\
---------------------------------------------------------------------------
    \24\Id.
---------------------------------------------------------------------------
    It makes little sense to roll back the sensible NSL reforms 
that were made as part of the USA PATRIOT Act. Criminal 
investigators have long been able to use grand jury subpoenas 
to obtain records so long as they are relevant to their 
investigation. Under Section 505 of the PATRIOT Act, the FBI 
can use NSLs to obtain specified records so long as they 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 of the Constitution of the United States.''
    This standard ensures that NSLs may not be used for 
improper purposes. Although some deficiencies were found by the 
Department of Justice Inspector General concerning the FBI's 
handling of NSLs, the Department of Justice has responded to 
these improper practices and is taking action to ensure that 
they are not repeated. For example, the use of so-called 
``exigent letters'' has been forbidden. In its March 2008 
report on NSLs, the Inspector General stated that ``the FBI and 
the Department have made significant progress in implementing 
the recommendations from [a prior Inspector General] report and 
in adopting other corrective actions to address serious 
problems we identified in the use of national security 
letters.''\25\ What is puzzling is that the supposed remedy in 
S. 1692--a sunset of the NSL standard to what it was before 
September 11, 2001--generally has no relationship whatsoever to 
the deficiencies related to NSLs found by the Inspector 
General.
---------------------------------------------------------------------------
    \25\See ``A Review of the Federal Bureau of Investigation's Use of 
National Security Letters: Assessment of Corrective Actions and 
Examination of NSL Usage in 2006,'' U.S. Dept. of Justice, Office of 
Inspector General, March 2008, at 15, available at http://
www.usdoj.gov/oig/special/s0803b/final.pdf.
---------------------------------------------------------------------------

Business and library records

    Although we are pleased with some of the modifications 
adopted by the Committee to Section 3 of S. 1692 to remedy 
potential operational concerns, we remain concerned that 
Section 3 continues to place too high a burden on the 
government's ability to obtain business records. Current law 
already imposes significant burdens on the efforts of 
investigators to obtain business records in national security 
and terrorism cases. For example, under current law, the 
government must submit a statement of facts showing reasonable 
grounds to believe that the business records sought are 
relevant to an authorized investigation. Under the current 
system, records are presumptively relevant if the government 
meets certain requirements. Unfortunately, S. 1692 removes that 
presumption and instead requires investigators to tell the 
court the reasons why the records are relevant. It is not 
necessary to make investigators spend their time doing this 
when they are dealing with agents of foreign powers, as opposed 
to uninvolved U.S. persons.
    Additionally, Section 3 provides unnecessary and curious 
protections for library records. If a library is involved, S. 
1692 requires the government to prove to the court that the 
business records sought pertain to a foreign power or an agent 
of a foreign power. If investigators cannot make this showing, 
they cannot use the records, even if they could otherwise 
satisfy a court that there were reasonable grounds to believe 
that the business records sought were relevant to an authorized 
investigation.
    S. 1692 suggests that national security investigators have 
some sort of curious interest in the library habits of ordinary 
Americans. There is simply no evidence to support this 
allegation. We do know, however, that terrorists and spies have 
used libraries to plan and carry out activities that threaten 
our national security. In 2005, then-Deputy Attorney James 
Comey told the House Judiciary Committee about the dangers in 
treating libraries differently from any other entity:

          Prosecutors have always been able to obtain records 
        from libraries and bookstores through grand jury 
        subpoenas. Libraries and booksellers should not become 
        safe havens for terrorists and spies. Last year, a 
        member of a terrorist group closely affiliated with al 
        Qaeda used Internet service provided by a public 
        library to communicate with his confederates. 
        Furthermore, we know that spies have used public 
        library computers to do research to further their 
        espionage and to communicate with their co-
        conspirators. For example, Brian Regan, a former TRW 
        employee working at the National Reconnaissance Office, 
        who was convicted of espionage, extensively used 
        computers at five public libraries in Northern Virginia 
        and Maryland to access addresses for the embassies of 
        certain foreign governments.\26\
---------------------------------------------------------------------------
    \26\Testimony of James Comey, Deputy Attorney General, before the 
House Committee on the Judiciary (June 8, 2005).

    As Mr. Comey explained, we simply should not allow 
libraries to become safe havens for terrorist or clandestine 
activities.

                           ADDITIONAL ISSUES

    In addition to the previously discussed problems, it is our 
understanding that there are several other issues and problems 
the Administration would like addressed in this legislation. We 
concur with the following particular criticisms and 
suggestions:

           An effective date for the statute should be 
        added to give the government sufficient time to make 
        necessary adjustments to systems and processes to 
        accommodate the new law.
           With respect to the public reporting 
        requirements of S. 1692, both the NSL and FISA 
        reporting requirements should be altered to ensure that 
        no publicly disclosed information could be used by 
        enemies of the United States to thwart surveillance or 
        to discern classified aspects of intelligence programs.
           Section 3(a)(3)(B)(iii) of S. 1692 provides 
        that orders under Section 501(c) of FISA should include 
        the requirement that the order ``shall direct that the 
        minimization procedures be followed.'' This should be 
        corrected by a technical amendment to Section 501.
           A provision should be added to ensure that 
        current orders issued pursuant to the statute will 
        remain in effect until they would be due for renewal.
           It should be made clear that the changes to 
        the business record and pen register statutes are 
        intended to codify current practice under the relevance 
        standard and are not intended to prohibit or restrict 
        any activities approved by the FISA Court under 
        existing authorities.
           It should be made clear that the new 
        provision regarding minimization in exceptional cases 
        is intended merely to codify the court-imposed 
        minimization regime with respect to certain programs, 
        and is not intended to require minimization in other 
        contexts.

                               CONCLUSION

    Although we support the Committee's efforts to reauthorize 
the three expiring PATRIOT Act provisions, we are deeply 
concerned by some of the changes in S. 1692 that could create 
unforeseen difficulties in ongoing and future counterterrorism 
investigations. We are especially concerned by language adopted 
in the Committee that would severely complicate the use of 
NSLs.
    The threat of violent Islamist extremism remains, not only 
from al-Qaeda but now also from al-Qaeda allied terrorist 
organizations operating around the world and lone wolf 
terrorists operating on their own here in the United States. 
The Zazi case and others make it clear that this is no time to 
let our guard down. Just weeks before U.S. officials identified 
Zazi as a possible terrorist threat, John Brennan, President 
Obama's Assistant for Homeland Security and Counterterrorism, 
stated publicly that ``another attack on the U.S. homeland 
remains the top priority for the al Qaeda senior leadership.''
    Our intelligence and law enforcement professionals need a 
complete and immediate reauthorization of the expiring PATRIOT 
Act authorities in order to continue their efforts to combat 
the terrorist threat at home and abroad. As recent arrests and 
indictments demonstrate, these vital tools are being used 
responsibly and wisely by law enforcement to protect our nation 
from another terrorist attack. Now is definitely not the time 
for Congress to add new legal standards and bureaucratic 
requirements to the legal authorities our counterterrorism 
officials rely upon to identify and stop those responsible for 
planning these terror attacks.
    We hope S. 1692 can be modified before final passage to 
create a more narrow reauthorization bill that creates fewer 
questions about the impact on operations.
                                   Jeff Sessions.
                                   Orrin G. Hatch.
                                   Chuck Grassley.
                                   Jon Kyl.
                                   Lindsey Graham.
                                   John Cornyn.
                                   Tom Coburn.

          ADDITIONAL VIEWS FROM SENATOR KYL AND SENATOR CORNYN

    We have numerous concerns with this bill, most of which are 
explained in the statement of additional views that we signed 
with Senators Sessions, Hatch, Grassley, Graham, and Coburn. 
Simply put, this bill would make many changes to current law 
that we believe are unwarranted and unwise given the continuing 
threat of terrorism, the demonstrated effectiveness of the 
PATRIOT Act tools in combating this threat,\1\ and the civil 
liberties safeguards that are already part of the PATRIOT 
Act.\2\ We write separately to explain why, notwithstanding our 
broad concerns about the overall policy direction being taken 
in this bill, we supported reporting it from the Committee.
---------------------------------------------------------------------------
    \1\For instance, PATRIOT Act tools appear to have played an 
important role in the arrest of terror suspect Najibullah Zazi. See 
``Notice of Intent To Use Foreign Intelligence Surveillance Act 
Information,'' United States v. Najibullah Zazi, U.S. District Court 
for the District of Colorado, Docket No. 09-cr-03001-CBS, September 21, 
2009; Christina Corbin, ``Patriot Act Likely Helped Thwart NYC Terror 
Plot, Security Experts Say,'' FOX News, May 21, 2009, available at 
http://www.foxnews.com/politics/2009/05/21/security-experts-say-
patriot-act-likely-helped-thwart-nyc-terror-plot/.
    \2\One example of the protections afforded by the PATRIOT Act is 
the ability of a party to challenge a Section 215 business records 
order. On September 14, 2009, the Department of Justice sent a letter 
to Chairman Leahy that said: ``It is noteworthy that no recipient of a 
FISA business records order has ever challenged the validity of the 
order, despite the availability, since 2006, of a clear statutory 
mechanism to do so. At the time of the USA PATRIOT Act, there was 
concern that the FBI would exploit the broad scope of the business 
records authority to collect sensitive personal information on 
constitutionally protected activities, such as the use of public 
libraries. This simply has not occurred, even in the environment of 
heightened terrorist threat activity.''
---------------------------------------------------------------------------
    The bill that was originally before the Committee had a 
number of provisions that would have directly affected ongoing 
and future national security investigations in an adverse way. 
The Chairman's substitute amendment was a step in the right 
direction--it addressed some of those operational impacts. But 
in a classified setting, officials from the Department of 
Justice, the Federal Bureau of Investigation (FBI), and the 
Office of the Director of National Intelligence confirmed that 
several provisions in the substitute bill still could cause 
significant operational problems.
    Senator Sessions offered a number of amendments to address 
specific concerns identified in that classified briefing. These 
amendments were accepted. In addition, Senator Kyl offered two 
amendments. The first required that a court give ``substantial 
weight'' to a government certification that the disclosure of 
the issuance of a national security letter would present a 
danger to national security. Prior to adoption of this 
amendment, the bill required only that a court give such a 
certification ``appropriate weight.'' The second amendment 
offered by Senator Kyl clarified that the bill's new 
requirement that the FBI prepare and maintain a ``written 
statement'' for every national security letter issued would not 
be misconstrued as discouraging the use of national security 
letters for preliminary investigations. It did this by 
requiring that a written statement be based on ``specific''--as 
opposed to ``specific and articulable''--facts. As with the 
amendments offered by Senator Sessions, the adoption of these 
amendments reduced the potential operational effects of the 
bill.
    Even with these improvements, the bill might still create 
operational problems. For example, an amendment to require the 
FBI to establish ``minimization procedures'' for national 
security letters was agreed to over the objection of many 
members, including ourselves. The amendment was described as 
having the support of the Administration and as requiring only 
that the Department of Justice and the FBI finalize procedures 
that are already close to completion.\3\ After the Committee 
voted to report the bill, however, the Justice Department and 
the FBI expressed serious objections to the amendment. 
According to them, the national security procedures that are 
being drafted might not be viewed by a court as ``minimization 
procedures,'' as would be required by the amendment. Moreover, 
the Department of Justice and the FBI expressed doubt that 
FISA-type ``minimization procedures'' were feasible in the 
national security letters context. In fact, they feared that 
``minimization procedures'' would pose substantial and 
undesirable obstacles to the use of this important tool. The 
Department of Justice and the FBI also raised a number of other 
issues that they believe must be addressed before the bill can 
be considered operationally neutral, including changes to the 
bill's public reporting and audit provisions and the inclusion 
of effective date language.
---------------------------------------------------------------------------
    \3\See Transcript of Executive Business Meeting at 68-72, Committee 
on the Judiciary, United States Senate, Oct. 8, 2009, available at 
http://www.senate.gov/fplayers/CommPlayer/
commFlashPlayer.cfm?fn=judiciary100809&st=xxx (min. 114:04-118:20). In 
relevant part, the transcript reads:
    Senator Feingold. So people are clear before we vote. This 
amendment is not about the standard for issuing NSLs. That was the 
previous amendment that Senator Durbin and I offered. It is about 
requiring the Executive Branch itself to have its own internal 
procedures, which the IG specified were inadequate and we do not 
specify what they will be.
    * * *
    Senator Feingold. Just very quickly, I want to reiterate what the 
Chairman just said. I do not know of anybody over there that is saying 
we should not do this. They are working on it. They think we ought to 
do it. The FBI thinks we ought to do it. The Attorney General thinks 
you ought to do it. They just have not gotten it done. We are just 
telling them to get it done. So the notion that somehow this is some 
terrible idea flies in the face of the very people you are often 
quoting as saying this.
    Senator Kyl. Senator Feingold, would you allow me to just interrupt 
you for a comment then? If this amendment is adopted and if it turns 
out that the statement you just made is correct, then I will back off 
my opposition. If it turns out that the statement is incorrect, I would 
hope we could revisit this. In other words, if the FBI says this is 
going to potentially impede our operations with respect to these kinds 
of letters--your statement was that they say that they are okay, that 
we need them.
    Senator Feingold. What I said was I know of nobody saying we should 
not do this. They are working on it. We are telling them to get it done 
in a timely manner. So, sure, if you find somebody----
    Senator Kyl. If you would be willing to----
    Senator Feingold. But nobody is saying that and they are working on 
it.
    Senator Leahy. Do you want a voice vote or roll call?
    Senator Kyl. Mr. Chairman, at this time, I will just register my 
objection based upon the agreement Senator Feingold and I have and then 
I do not require a roll call vote.
---------------------------------------------------------------------------
    In light of the critical need to reauthorize the expiring 
provisions by the end of the year, the progress that has been 
made to improve the bill thus far, and, most importantly, our 
understanding that the bill's sponsors will continue to work in 
good faith with us to address any remaining adverse operational 
impacts that the bill might have, we voted to keep this bill 
moving forward. We did this despite serious misgivings about 
the policy direction that the bill takes in many areas (for 
example, the imposition of a new sunset on national security 
letters). It is our hope that, with the help of the Department 
of Justice and the FBI, we can continue to identify and fix 
provisions of the bill that could have an adverse operational 
effect. We will be able to support the final product only if it 
does not impede the government's ability to investigate and 
prevent terrorist activities. In this regard, the interaction 
of the House and Senate will be critical.
                                   Jon Kyl.
                                   John Cornyn.

       MINORITY VIEWS FROM SENATORS FEINGOLD, DURBIN AND SPECTER

    S. 1692, as reported by this Committee, contains 
improvements over current law that we support. Nonetheless, we 
voted against reporting the bill because we believe it does not 
go far enough. We commend the Chairman for his efforts to 
include new civil liberties protections in this bill, including 
important transparency and oversight measures. Our concerns are 
generally not with what is in the bill; they are with what is 
missing: adequate protections for the privacy of innocent 
Americans. The government needs strong tools to combat 
terrorism, but those tools also need to be subject to 
sufficient safeguards and robust oversight.
    There can be no doubt that significant statutory changes 
are needed. In 2007, the Department of Justice Inspector 
General concluded in a lengthy report that there had been 
``widespread and serious misuse of the FBI's national security 
letter authorities. In many instances, the FBI's misuse of 
national security letters violated NSL statutes, Attorney 
General Guidelines, or the FBI's own internal policies.'' The 
USA PATRIOT Act vastly expanded the National Security Letter 
(NSL) statutes, and the government can issue NSLs without 
judicial review. The 2007 Inspector General report stated that 
22% of NSL requests were not reported in the FBI tracking 
database. It further identified more than 700 instances in 
which the FBI improperly obtained telephone toll billing 
records through the use of ``exigent letters.'' A recent FBI 
briefing conveyed that after an internal review, the FBI 
identified 4,379 unique numbers that were contained in either 
exigent letters or so-called ``Blanket NSLs'' (which were 
issued in an attempt to provide legal process for information 
previously obtained via exigent letters or oral requests). Of 
those, 610 were purged because the FBI could not reconcile the 
data with any appropriate legal process. The Inspector General 
also documented that the use of NSLs has been increasing, 
particularly to gather information on U.S. persons. According 
to the 2008 Inspector General report, the percentage of NSL 
requests generated from investigations of U.S. persons grew 
from 39% in 2003 to 57% in 2006. During this same time frame, 
NSL requests relating to non-U.S. persons remained relatively 
stable, while the number of requests relating to U.S. persons 
grew from 6,519 in 2003 to 11,517 in 2006.
    We appreciate the steps that the FBI has taken to address 
the problems identified by the Inspector General's reports, but 
ultimately we believe statutory reforms are needed to ensure 
that such problems do not recur. And this is just one example; 
the USA PATRIOT Act dramatically expanded other surveillance 
authorities that also are not yet subject to adequate statutory 
protections.
    We preferred the original version of S. 1692 that the 
Chairman introduced over the Committee-reported version. The 
substitute amendment weakened some of the most substantial 
privacy protections that were in the original version of the 
bill.
    Nonetheless, the bill does contain some important 
improvements. We support the new Department of Justice 
Inspector General audit requirements. It is due to similar 
provisions that the Chairman championed in the 2005 
reauthorization legislation that we now know about the 
extensive misuse of the National Security Letter authorities by 
the FBI. The public reporting requirements in S. 1692 will help 
bring additional transparency to how National Security Letters 
and Foreign Intelligence Surveillance Act authorities are used. 
And changes to the provisions governing NSL and Section 215 
nondisclosure orders help bring those provisions in line with 
the First Amendment.
    We strongly support the inclusion of a change to the 
statute governing delayed notification criminal search 
warrants, 18 U.S.C. Sec. 3103a, which was enacted as part of 
the USA PATRIOT Act and permits the government to secretly 
search people's houses in the course of ordinary criminal 
investigations and not notify them until weeks or months later. 
The Committee-reported bill shortens the presumptive time 
period for delayed notice from 30 days to 7 days. A July 2009 
report of the Administrative Office of the U.S. Courts 
confirmed that these so-called ``sneak and peek'' warrants are 
only very rarely used in terrorism cases. Given the very 
substantial privacy interests at stake, we are pleased that the 
bill shortens the presumptive notification period.
    The bill also contains new four-year sunsets, including for 
the first time a sunset for National Security Letters. It would 
be our preference to finally fix these authorities once and for 
all, but it is important to note that establishing sunsets will 
require Congress to reconsider these authorities in the future. 
We do question the need to extend the so-called ``lone wolf'' 
authority, given that it has never been used and that it raises 
serious constitutional questions.
    We also agree with the provision in the bill requiring that 
minimization procedures for Section 215 orders be court-
approved. We were disappointed that a similar provision for 
FISA pen register and trap and trace device orders was modified 
during the markup process to essentially make pen/trap 
minimization procedures optional. We were pleased that the 
Committee adopted by voice vote an amendment offered by Senator 
Feingold that would require the Attorney General within 180 
days to issue minimization procedures for National Security 
Letters. This was a recommendation of the Department of Justice 
Inspector General, who testified as follows at the September 
23, 2009, Senate Judiciary Committee hearing:

          We believe that the Department should promptly . . . 
        issue final minimization procedures for NSLs that 
        address the collection of information through NSLs, how 
        the FBI can upload NSL information in FBI databases, 
        the dissemination of NSL information, the appropriate 
        tagging and tracking of NSL derived information in FBI 
        databases and files, and the time period for retention 
        of NSL obtained information. At this point, more than 2 
        years have elapsed since after our first report was 
        issued, and final guidance is needed and overdue.

    We agree with the Inspector General that these procedures 
need to be completed. We understand that the FBI and Justice 
Department have been working on this, and we believe that a 
statutory mandate to promulgate such procedures in combination 
with a firm deadline will ensure this recommendation is 
implemented. Of course, procedures governing the acquisition, 
retention and dissemination of records obtained via National 
Security Letters will be different from minimization procedures 
established for the collection of the full contents of 
communications. It nonetheless remains important that such 
procedures be established, particularly because National 
Security Letters are used without any FISA Court review or 
oversight.
    New sunsets, audits, reporting requirements and executive 
branch procedures are positive reforms, but ultimately Congress 
must set the rules for when the Executive Branch can use 
investigative tools that have implications for Americans' 
privacy rights. That is why we were disappointed that the 
Committee rejected amendments that would have imposed stricter 
statutory standards for obtaining any tangible things under 
Section 215 of the USA PATRIOT Act and for obtaining sensitive 
personal records under the NSL statutes--standards that would 
have protected against government fishing expeditions.
    The standard under current law for both authorities is mere 
relevance to an investigation to protect against international 
terrorism or clandestine intelligence activities. That is a 
very broad standard, which does not provide, in our view, 
adequate protection against unnecessary, overbroad, or 
otherwise inappropriate demands for records. Senator Durbin 
offered amendments that would have changed the standard--for 
both Section 215 and NSLs--to require some connection, however 
remote, to a suspected terrorist or spy. Specifically, the 
standard he proposed would require the government to 
demonstrate that the records sought are relevant to a national 
security investigation, and that the records (1) pertain to an 
agent of a foreign power; (2) pertain to someone in contact 
with or known to an agent of a foreign power; or (3) are 
relevant to the activities of an agent of a foreign power.
    This is the same standard that the Committee-reported bill 
would impose on the use of Section 215 to obtain library 
circulation records and patron lists. While library records are 
particularly sensitive, so are other records that can be 
obtained with Section 215 orders, such as medical and 
bookseller records. Thus, we believe this standard should apply 
to all records and other tangible things sought under Section 
215, not just library records. Indeed, the original version of 
S. 1692 did just that, but that important protection was 
limited to library records in the complete substitute. The 
three-part standard that Senator Durbin proposed would give the 
FBI the authority and flexibility it needs to conduct 
intelligence investigations, while also ensuring that the 
records it collects have some direct or indirect connection to 
a suspected terrorist or spy--an important protection for 
innocent Americans.
    It is also important to note that this three-part standard 
is not a new proposal. When the Committee considered USA 
PATRIOT Act reauthorization legislation in 2005, it unanimously 
reported a bill, S. 1389 (109th Cong.), that contained this 
standard for Section 215 orders. That bill then passed the 
Senate by unanimous consent in July 2005. We believe this 
provision should be included in this reauthorization 
legislation for Section 215 orders, NSLs, and FISA pen/traps--
and that the failure to do so is the biggest gap in the 
legislation.
    We also would have preferred that the Committee-reported 
bill include additional modifications to address, among other 
things, the permanent, automatic gag orders that are imposed on 
all recipients of Section 215 orders; the language in FISA that 
permits the government to obtain so-called ``John Doe'' roving 
wiretap orders based simply on a ``description'' of a target; 
and the circumstances in which criminal sneak and peek search 
warrants are allowed. Many of the reforms we support are 
included in S. 1686, the JUSTICE Act, which Senator Feingold 
introduced.
    In sum, we believe Congress should take the opportunity 
presented by this reauthorization process to reform the 
surveillance authorities so dramatically expanded by the USA 
PATRIOT Act once and for all. S. 1692 contains additional 
transparency measures, sunsets that will force Congress to 
revisit these issues in four years, and some important but 
modest changes to the authorities that raise civil liberties 
concerns. However, we believe additional checks and balances 
are needed and therefore we opposed reporting the bill in this 
form to the full Senate.
                                   Russell D. Feingold.
                                   Richard Durbin.
                                   Arlen Specter.

      VIII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1692, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                           UNITED STATES CODE

TITLE 12--BANKS AND BANKING

           *       *       *       *       *       *       *


CHAPTER 35--RIGHT TO FINANCIAL PRIVACY

           *       *       *       *       *       *       *


SEC. 3414. SPECIAL PROCEDURES.

    (a)(1) Nothing in this chapter (except sections 3415, 3417, 
3418, and 3421 of this title) shall apply to the production and 
disclosure of financial records pursuant to requests from--
          (A) a Government authority authorized to conduct 
        foreign counter- or foreign positive-intelligence 
        activities for purposes of conducting such activities;
          (B) the Secret Service for the purpose of conducting 
        its protective functions (18 U.S.C. 3056; 18 U.S.C. 
        3056A, Public Law 90-331, as amended); or
          (C) a Government authority authorized to conduct 
        investigations of, or intelligence or 
        counterintelligence analyses related to, international 
        terrorism for the purpose of conducting such 
        investigations or analyses.
    (2) In the instances specified in paragraph (1), the 
Government authority shall submit to the financial institution 
the certificate required in section 3403(b) of this title 
signed by a supervisory official of a rank designated by the 
head of the Government authority.
    (3)(A) If the Government authority described in paragraph 
(1) or the Secret Service, as the case may be, certifies that 
otherwise there may result 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, no financial institution, or 
officer, employee, or agent of such institution, shall disclose 
to any person (other than those to whom such disclosure is 
necessary to comply with the request or an attorney to obtain 
legal advice or legal assistance with respect to the request) 
that the Government authority or the Secret Service has sought 
or obtained access to a customer's financial records.
    (B) The request shall notify the person or entity to whom 
the request is directed of the nondisclosure requirement under 
subparagraph (A).
    (C) Any recipient disclosing to those persons necessary to 
comply with the request or to an attorney to obtain legal 
advice or legal assistance with respect to the request shall 
inform such persons of any applicable nondisclosure 
requirement. Any person who receives a disclosure under this 
subsection shall be subject to the same prohibitions on 
disclosure under subparagraph (A).
    (D) At the request of the authorized Government authority 
or the Secret Service, any person making or intending to make a 
disclosure under this section shall identify to the requesting 
official of the authorized Government authority or the Secret 
Service the person to whom such disclosure will be made or to 
whom such disclosure was made prior to the request, except that 
nothing in this section shall require a person to inform the 
requesting official of the authorized Government authority or 
the Secret Service of the identity of an attorney to whom 
disclosure was made or will be made to obtain legal advice or 
legal assistance with respect to the request for financial 
records under this subsection.
    (4) The Government authority specified in paragraph (1) 
shall compile an annual tabulation of the occasions in which 
this section was used.
    (5)(A) Financial institutions, and officers, employees, and 
agents thereof, shall comply with a request for a customer's or 
entity's financial records made pursuant to this subsection by 
the Federal Bureau of Investigation when the Director of the 
Federal Bureau of Investigation (or the Director's designee in 
a position not lower than Deputy Assistant Director at Bureau 
headquarters or a Special Agent in Charge in a Bureau field 
office designated by the Director) certifies in writing to the 
financial institution that such records are sought for foreign 
counter intelligence [FN1] purposes 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.
    (B) The Director of the Federal Bureau of Investigation, or 
a designee in a position not lower than Deputy Assistant 
Director at Bureau headquarters or a Special Agent in Charge in 
a Bureau field office designated by the Director, may make a 
certification under subparagraph (A) only upon a written 
statement, which shall be retained by the Federal Bureau of 
Investigation, of specific facts showing that there are 
reasonable grounds to believe that the information sought is 
relevant to the authorized investigation described in 
subparagraph (A).
    (C)[(B)] The Federal Bureau of Investigation may 
disseminate information obtained pursuant to this paragraph 
only as provided in guidelines approved by the Attorney General 
for foreign intelligence collection and foreign 
counterintelligence investigations conducted by the Federal 
Bureau of Investigation, and, with respect to dissemination to 
an agency of the United States, only if such information is 
clearly relevant to the authorized responsibilities of such 
agency.
    (D)[(C)] On the dates provided in section 415b of Title 50, 
the Attorney General shall fully inform the congressional 
intelligence committees (as defined in section 401a of Title 
50) concerning all requests made pursuant to this paragraph.
    [(D) Prohibition of certain disclosure.--
          [(i) If the Director of the Federal Bureau of 
        Investigation, or his designee in a position not lower 
        than Deputy Assistant Director at Bureau headquarters 
        or a Special Agent in Charge in a Bureau field office 
        designated by the Director, certifies that otherwise 
        there may result 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, no financial 
        institution, or officer, employee, or agent of such 
        institution, shall disclose to any person (other than 
        those to whom such disclosure is necessary to comply 
        with the request or an attorney to obtain legal advice 
        or legal assistance with respect to the request) that 
        the Federal Bureau of Investigation has sought or 
        obtained access to a customer's or entity's financial 
        records under subparagraph (A).
          [(ii) The request shall notify the person or entity 
        to whom the request is directed of the nondisclosure 
        requirement under clause (i).
          [(iii) Any recipient disclosing to those persons 
        necessary to comply with the request or to an attorney 
        to obtain legal advice or legal assistance with respect 
        to the request shall inform such persons of any 
        applicable nondisclosure requirement. Any person who 
        receives a disclosure under this subsection shall be 
        subject to the same prohibitions on disclosure under 
        clause (i).
          [(iv) At the request of the Director of the Federal 
        Bureau of Investigation or the designee of the 
        Director, any person making or intending to make a 
        disclosure under this section shall identify to the 
        Director or such designee the person to whom such 
        disclosure will be made or to whom such disclosure was 
        made prior to the request, except that nothing in this 
        section shall require a person to inform the Director 
        or such designee of the identity of an attorney to whom 
        disclosure was made or will be made to obtain legal 
        advice or legal assistance with respect to the request 
        for financial records under subparagraph (A).]
    (E) Prohibition of Certain Disclosure.--
          (i) Prohibition.--
                  (I) In general.--If a certification is issued 
                under subclause (II) and notice of the right to 
                judicial review under clause (iii) is provided, 
                no financial institution, or officer, employee, 
                or agent thereof, that receives a request under 
                subparagraph (A), shall disclose to any person 
                that the Federal Bureau of Investigation has 
                sought or obtained access to information or 
                records under subparagraph (A).
                  (II) Certification.--The requirements of 
                subclause (I) shall apply if the Director of 
                the Federal Bureau of Investigation, or a 
                designee of the Director whose rank shall be no 
                lower than Deputy Assistant Director at Bureau 
                headquarters or a Special Agent in Charge of a 
                Bureau field office, certifies that, absent a 
                prohibition of disclosure under this 
                subparagraph, there may result--
                          (aa) a danger to the national 
                        security of the United States;
                          (bb) interference with a criminal, 
                        counterterrorism, or 
                        counterintelligence investigation;
                          (cc) interference with diplomatic 
                        relations; or
                          (dd) danger to the life or physical 
                        safety of any person.
          (ii) Exception.--
                  (I) In general.--A financial institution, or 
                officer, employee, or agent thereof, that 
                receives a request under subparagraph (A) may 
                disclose information otherwise subject to any 
                applicable nondisclosure requirement to
                          (aa) those persons to whom disclosure 
                        is necessary in order to comply with 
                        the request;
                          (bb) an attorney in order to obtain 
                        legal advice or assistance regarding 
                        the request; or
                          (cc) other persons as permitted by 
                        the Director of the Federal Bureau of 
                        Investigation or the designee of the 
                        Director.
                  (II) Persons necessary for compliance.--Upon 
                a request by the Director of the Federal Bureau 
                of Investigation or the designee of the 
                Director, those persons to whom disclosure will 
                be made under subclause (I)(aa) or to whom such 
                disclosure was made before the request shall be 
                identified to the Director or the designee.
                  (III) Nondisclosure requirement.--A person to 
                whom disclosure is made under subclause (I) 
                shall be subject to the nondisclosure 
                requirements applicable to a person to whom a 
                request is issued under subparagraph (A) in the 
                same manner as the person to whom the request 
                is issued.
                  (IV) Notice.--Any recipient that discloses to 
                a person described in subclause (I) information 
                otherwise subject to a nondisclosure 
                requirement shall inform the person of the 
                applicable nondisclosure requirement.
          (iii) Right to judicial review.--
                  (I) In general.--A financial institution that 
                receives a request under subparagraph (A) shall 
                have the right to judicial review of any 
                applicable nondisclosure requirement.
                  (II) Notification.--A request under 
                subparagraph (A) shall state that if the 
                recipient wishes to have a court review a 
                nondisclosure requirement, the recipient shall 
                notify the Government.
                  (III) Initiation of proceedings.--If a 
                recipient of a request under subparagraph (A) 
                makes a notification under subclause (II), the 
                Government shall initiate judicial review under 
                the procedures established in section 3511 of 
                title 18, United States Code, unless an 
                appropriate official of the Federal Bureau of 
                Investigation makes a notification under clause 
                (iv).
          (iv) Termination.--In the case of any request for 
        which a financial institution has submitted a 
        notification under clause (iii)(II), if the facts 
        supporting a nondisclosure requirement cease to exist, 
        an appropriate official of the Federal Bureau of 
        Investigation shall promptly notify the financial 
        institution, or officer, employee, or agent thereof, 
        subject to the nondisclosure requirement that the 
        nondisclosure requirement is no longer in effect.
    (b)(1) Nothing in this chapter shall prohibit a Government 
authority from obtaining financial records from a financial 
institution if the Government authority determines that delay 
in obtaining access to such records would create imminent 
danger of--
          (A) physical injury to any person;
          (B) serious property damage; or
          (C) flight to avoid prosecution.
    (2) In the instances specified in paragraph (1), the 
Government shall submit to the financial institution the 
certificate required in section 3403(b) of this title signed by 
a supervisory official of a rank designated by the head of the 
Government authority.
    (3) Within five days of obtaining access to financial 
records under this subsection, the Government authority shall 
file with the appropriate court a signed, sworn statement of a 
supervisory official of a rank designated by the head of the 
Government authority setting forth the grounds for the 
emergency access. The Government authority shall thereafter 
comply with the notice provisions of section 3409(c) of this 
title.
    (4) The Government authority specified in paragraph (1) 
shall compile an annual tabulation of the occasions in which 
this section was used.

           *       *       *       *       *       *       *

    (d) For purposes of this section, and sections 3415 and 
3417 of this title insofar as they 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, except that, for purposes of this section, such term 
shall include only such 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.

           *       *       *       *       *       *       *


TITLE 15--COMMERCE AND TRADE

           *       *       *       *       *       *       *


                 CHAPTER 41--CONSUMER CREDIT PROTECTION


               Subchapter III--Credit Reporting Agencies


SEC. 1681U. DISCLOSURES TO FBI FOR COUNTERINTELLIGENCE PURPOSES.

           *       *       *       *       *       *       *


    [(d) Confidentiality.--
          [(1) If the Director of the Federal Bureau of 
        Investigation, or his designee in a position not lower 
        than Deputy Assistant Director at Bureau headquarters 
        or a Special Agent in Charge in a Bureau field office 
        designated by the Director, certifies that otherwise 
        there may result 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, no consumer 
        reporting agency or officer, employee, or agent of a 
        consumer reporting agency shall disclose to any person 
        (other than those to whom such disclosure is necessary 
        to comply with the request or an attorney to obtain 
        legal advice or legal assistance with respect to the 
        request) that the Federal Bureau of Investigation has 
        sought or obtained the identity of financial 
        institutions or a consumer report respecting any 
        consumer under subsection (a), (b), or (c) of this 
        section, and no consumer reporting agency or officer, 
        employee, or agent of a consumer reporting agency shall 
        include in any consumer report any information that 
        would indicate that the Federal Bureau of Investigation 
        has sought or obtained such information on a consumer 
        report.
          [(2) The request shall notify the person or entity to 
        whom the request is directed of the nondisclosure 
        requirement under paragraph (1).
          [(3) Any recipient disclosing to those persons 
        necessary to comply with the request or to an attorney 
        to obtain legal advice or legal assistance with respect 
        to the request shall inform such persons of any 
        applicable nondisclosure requirement. Any person who 
        receives a disclosure under this subsection shall be 
        subject to the same prohibitions on disclosure under 
        paragraph (1).
          [(4) At the request of the Director of the Federal 
        Bureau of Investigation or the designee of the 
        Director, any person making or intending to make a 
        disclosure under this section shall identify to the 
        Director or such designee the person to whom such 
        disclosure will be made or to whom such disclosure was 
        made prior to the request, except that nothing in this 
        section shall require a person to inform the Director 
        or such designee of the identity of an attorney to whom 
        disclosure was made or will be made to obtain legal 
        advice or legal assistance with respect to the request 
        for the identity of financial institutions or a 
        consumer report respecting any consumer under this 
        section.]
    (d) Written Statement.--The Director of the Federal Bureau 
of Investigation, or a designee in a position not lower than 
Deputy Assistant Director at Bureau headquarters or a Special 
Agent in Charge in a Bureau field office designated by the 
Director, may make a certification under subsection (a) or (b) 
only upon a written statement, which shall be retained by the 
Federal Bureau of Investigation, of specific facts showing that 
there are reasonable grounds to believe that the information 
sought is relevant to the authorized investigation described in 
subsection (a) or (b), as the case may be.
    (e) Prohibition of Certain Disclosure.--
          (1) Prohibition.--
                  (A) In general.--If a certification is issued 
                under subparagraph (B) and notice of the right 
                to judicial review under paragraph (3) is 
                provided, no consumer reporting agency, or 
                officer, employee, or agent thereof, that 
                receives a request or order under subsection 
                (a), (b), or (c), shall disclose or specify in 
                any consumer report, that the Federal Bureau of 
                Investigation has sought or obtained access to 
                information or records under subsection (a), 
                (b), or (c).
                  (B) Certification.--The requirements of 
                subparagraph (A) shall apply if the Director of 
                the Federal Bureau of Investigation, or a 
                designee of the Director whose rank shall be no 
                lower than Deputy Assistant Director at Bureau 
                headquarters or a Special Agent in Charge of a 
                Bureau field office, certifies that, absent a 
                prohibition of disclosure under this 
                subsection, there may result--
                          (i) a danger to the national security 
                        of the United States;
                          (ii) interference with a criminal, 
                        counterterrorism, or 
                        counterintelligence investigation;
                          (iii) interference with diplomatic 
                        relations; or
                          (iv) danger to the life or physical 
                        safety of any person.
          (2) Exception.--
                  (A) In general.--A consumer reporting agency, 
                or officer, employee, or agent thereof, that 
                receives a request or order under subsection 
                (a), (b), or (c) may disclose information 
                otherwise subject to any applicable 
                nondisclosure requirement to--
                          (i) those persons to whom disclosure 
                        is necessary in order to comply with 
                        the request or order;
                          (ii) an attorney in order to obtain 
                        legal advice or assistance regarding 
                        the request or order; or
                          (iii) other persons as permitted by 
                        the Director of the Federal Bureau of 
                        Investigation or the designee of the 
                        Director.
                  (B) Persons necessary for compliance.--Upon a 
                request by the Director of the Federal Bureau 
                of Investigation or the designee of the 
                Director, those persons to whom disclosure will 
                be made under subparagraph (A)(i) or to whom 
                such disclosure was made before the request 
                shall be identified to the Director or the 
                designee.
                  (C) Nondisclosure requirement.--A person to 
                whom disclosure is made under subparagraph (A) 
                shall be subject to the nondisclosure 
                requirements applicable to a person to whom a 
                request or order is issued under subsection 
                (a), (b), or (c) in the same manner as the 
                person to whom the request or order is issued.
                  (D) Notice.--Any recipient that discloses to 
                a person described in subparagraph (A) 
                information otherwise subject to a 
                nondisclosure requirement shall inform the 
                person of the applicable nondisclosure 
                requirement.
          (3) Right to judicial review.--
                  (A) In general.--A consumer reporting agency 
                that receives a request or order under 
                subsection (a), (b), or (c) shall have the 
                right to judicial review of any applicable 
                nondisclosure requirement.
                  (B) Notification.--A request or order under 
                subsection (a), (b), or (c) shall state that if 
                the recipient wishes to have a court review a 
                nondisclosure requirement, the recipient shall 
                notify the Government.
                  (C) Initiation of proceedings.--If a 
                recipient of a request or order under 
                subsection (a), (b), or (c) makes a 
                notification under subparagraph (B), the 
                Government shall initiate judicial review under 
                the procedures established in section 3511 of 
                title 18, United States Code, unless an 
                appropriate official of the Federal Bureau of 
                Investigation makes a notification under 
                paragraph (4).
          (4) Termination.--In the case of any request or order 
        for which a consumer reporting agency has submitted a 
        notification under paragraph (3)(B), if the facts 
        supporting a nondisclosure requirement cease to exist, 
        an appropriate official of the Federal Bureau of 
        Investigation shall promptly notify the consumer 
        reporting agency, or officer, employee, or agent 
        thereof, subject to the nondisclosure requirement that 
        the nondisclosure requirement is no longer in effect.
    (f)[(e)] Payment of Fees.--The Federal Bureau of 
Investigation shall, subject to the availability of 
appropriations, pay to the consumer reporting agency assembling 
or providing report or information in accordance with 
procedures established under this section a fee for 
reimbursement for such costs as are reasonably necessary and 
which have been directly incurred in searching, reproducing, or 
transporting books, papers, records, or other data required or 
requested to be produced under this section.
    (g)[(f)] Limit on Dissemination.--The Federal Bureau of 
Investigation may not disseminate information obtained pursuant 
to this section outside of the Federal Bureau of Investigation, 
except to other Federal agencies as may be necessary for the 
approval or conduct of a foreign counterintelligence 
investigation, or, where the information concerns a person 
subject to the Uniform Code of Military Justice, to appropriate 
investigative authorities within the military department 
concerned as may be necessary for the conduct of a joint 
foreign counterintelligence investigation.
    (h)[(g)] Rules of Construction.--Nothing in this section 
shall be construed to prohibit information from being furnished 
by the Federal Bureau of Investigation pursuant to a subpoena 
or court order, in connection with a judicial or administrative 
proceeding to enforce the provisions of this subchapter. 
Nothing in this section shall be construed to authorize or 
permit the withholding of information from the Congress.
    (i)[(h)] Reports to Congress.--
          (1) On a semiannual basis, the Attorney General shall 
        fully inform the Permanent Select Committee on 
        Intelligence and the Committee on Banking, Finance and 
        Urban Affairs of the House of Representatives, and the 
        Select Committee on Intelligence and the Committee on 
        Banking, Housing, and Urban Affairs of the Senate 
        concerning all requests made pursuant to subsections 
        (a), (b), and (c) of this section.
          (2) In the case of the semiannual reports required to 
        be submitted under paragraph (1) to the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Select Committee on 
        Intelligence of the Senate, the submittal dates for 
        such reports shall be as provided in section 415b of 
        Title 50.
    (j)[(i)] Damages.--Any agency or department of the United 
States obtaining or disclosing any consumer reports, records, 
or information contained therein in violation of this section 
is liable to the consumer to whom such consumer reports, 
records, or information relate in an amount equal to the sum 
of--
          (1) $100, without regard to the volume of consumer 
        reports, records, or information involved;
          (2) any actual damages sustained by the consumer as a 
        result of the disclosure;
          (3) if the violation is found to have been willful or 
        intentional, such punitive damages as a court may 
        allow; and
          (4) in the case of any successful action to enforce 
        liability under this subsection, the costs of the 
        action, together with reasonable attorney fees, as 
        determined by the court.
    (k)[(j)] Disciplinary Actions for Violations.--If a court 
determines that any agency or department of the United States 
has violated any provision of this section and the court finds 
that the circumstances surrounding the violation raise 
questions of whether or not an officer or employee of the 
agency or department acted willfully or intentionally with 
respect to the violation, the agency or department shall 
promptly initiate a proceeding to determine whether or not 
disciplinary action is warranted against the officer or 
employee who was responsible for the violation.
    (l)[(k)] Good-Faith Exception.--Notwithstanding any other 
provision of this subchapter, any consumer reporting agency or 
agent or employee thereof making disclosure of consumer reports 
or identifying information pursuant to this subsection in good-
faith reliance upon a certification of the Federal Bureau of 
Investigation pursuant to provisions of this section shall not 
be liable to any person for such disclosure under this 
subchapter, the constitution of any State, or any law or 
regulation of any State or any political subdivision of any 
State.
    (m)[(l)] Limitation of Remedies.--Notwithstanding any other 
provision of this subchapter, the remedies and sanctions set 
forth in this section shall be the only judicial remedies and 
sanctions for violation of this section.
    (n)[(m)] Injunctive Relief.--In addition to any other 
remedy contained in this section, injunctive relief shall be 
available to require compliance with the procedures of this 
section. In the event of any successful action under this 
subsection, costs together with reasonable attorney fees, as 
determined by the court, may be recovered.

SEC. 1681V. DISCLOSURES TO GOVERNMENTAL AGENCIES FOR COUNTERTERRORISM 
                    PURPOSES.

    (a) Disclosure.--Notwithstanding section 1681b of this 
title or any other provision of this subchapter, a consumer 
reporting agency shall furnish a consumer report of a consumer 
and all other information in a consumer's file to a government 
agency authorized to conduct investigations of, or intelligence 
or counterintelligence activities or analysis related to, 
international terrorism when presented with a written 
certification by such government agency that such information 
is necessary for the agency's conduct or such investigation, 
activity or analysis.
    (b) Certification [Form of Certification].--
          [The certification] (1) Form of certification._The 
        certification described in subsection (a) of this 
        section shall be signed by a supervisory official 
        designated by the head of a Federal agency or an 
        officer of a Federal agency whose appointment to office 
        is required to be made by the President, by and with 
        the advice and consent of the Senate.
          (2) Written statement.--A supervisory official or 
        officer described in paragraph (1) may make a 
        certification under subsection (a) only upon a written 
        statement, which shall be retained by the government 
        agency, of specific facts showing that there are 
        reasonable grounds to believe that the information 
        sought is relevant to the authorized investigation 
        described in subsection (a).
    [(c) Confidentiality.--
          [(1) If the head of a government agency authorized to 
        conduct investigations of intelligence or 
        counterintelligence activities or analysis related to 
        international terrorism, or his designee, certifies 
        that otherwise there may result 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, no consumer reporting agency or 
        officer, employee, or agent of such consumer reporting 
        agency, shall disclose to any person (other than those 
        to whom such disclosure is necessary to comply with the 
        request or an attorney to obtain legal advice or legal 
        assistance with respect to the request), or specify in 
        any consumer report, that a government agency has 
        sought or obtained access to information under 
        subsection (a) of this section.
          [(2) The request shall notify the person or entity to 
        whom the request is directed of the nondisclosure 
        requirement under paragraph (1).
          [(3) Any recipient disclosing to those persons 
        necessary to comply with the request or to any attorney 
        to obtain legal advice or legal assistance with respect 
        to the request shall inform such persons of any 
        applicable nondisclosure requirement. Any person who 
        receives a disclosure under this subsection shall be 
        subject to the same prohibitions on disclosure under 
        paragraph (1).
          [(4) At the request of the authorized government 
        agency, any person making or intending to make a 
        disclosure under this section shall identify to the 
        requesting official of the authorized government agency 
        the person to whom such disclosure will be made or to 
        whom such disclosure was made prior to the request, 
        except that nothing in this section shall require a 
        person to inform the requesting official of the 
        identity of an attorney to whom disclosure was made or 
        will be made to obtain legal advice or legal assistance 
        with respect to the request for information under 
        subsection (a) of this section.]
    (c) Prohibition of Certain Disclosure.--
          (1) Prohibition.--
                  (A) In general.--If a certification is issued 
                under subparagraph (B) and notice of the right 
                to judicial review under paragraph (3) is 
                provided, no consumer reporting agency, or 
                officer, employee, or agent thereof, that 
                receives a request under subsection (a), shall 
                disclose to any person or specify in any 
                consumer report, that a government agency has 
                sought or obtained access to information under 
                subsection (a).
                  (B) Certification.--The requirements of 
                subparagraph (A) shall apply if the head of a 
                government agency authorized to conduct 
                investigations of, or intelligence or 
                counterintelligence activities or analysis 
                related to, international terrorism, or a 
                designee, certifies that, absent a prohibition 
                of disclosure under this subsection, there may 
                result--
                          (i) a danger to the national security 
                        of the United States;
                          (ii) interference with a criminal, 
                        counterterrorism, or 
                        counterintelligence investigation;
                          (iii) interference with diplomatic 
                        relations; or
                          (iv) danger to the life or physical 
                        safety of any person.
          (2) Exception.--
                  (A) In general.--A consumer reporting agency, 
                or officer, employee, or agent thereof, that 
                receives a request under subsection (a) may 
                disclose information otherwise subject to any 
                applicable nondisclosure requirement to--
                          (i) those persons to whom disclosure 
                        is necessary in order to comply with 
                        the request;
                          (ii) an attorney in order to obtain 
                        legal advice or assistance regarding 
                        the request; or
                          (iii) other persons as permitted by 
                        the head of the government agency 
                        authorized to conduct investigations 
                        of, or intelligence or 
                        counterintelligence activities or 
                        analysis related to, international 
                        terrorism, or a designee.
                  (B) Persons necessary for compliance.--Upon a 
                request by the head of a government agency 
                authorized to conduct investigations of, or 
                intelligence or counterintelligence activities 
                or analysis related to, international 
                terrorism, or a designee, those persons to whom 
                disclosure will be made under subparagraph 
                (A)(i) or to whom such disclosure was made 
                before the request shall be identified to the 
                head of the government agency or the designee.
                  (C) Nondisclosure requirement.--A person to 
                whom disclosure is made under subparagraph (A) 
                shall be subject to the nondisclosure 
                requirements applicable to a person to whom a 
                request is issued under subsection (a) in the 
                same manner as the person to whom the request 
                is issued.
                  (D) Notice.--Any recipient that discloses to 
                a person described in subparagraph (A) 
                information otherwise subject to a 
                nondisclosure requirement shall inform the 
                person of the applicable nondisclosure 
                requirement.
          (3) Right to judicial review.--
                  (A) In general.--A consumer reporting agency 
                that receives a request under subsection (a) 
                shall have the right to judicial review of any 
                applicable nondisclosure requirement.
                  (B) Notification.--A request under subsection 
                (a) shall state that if the recipient wishes to 
                have a court review a nondisclosure 
                requirement, the recipient shall notify the 
                government.
                  (C) Initiation of proceedings.--If a 
                recipient of a request under subsection (a) 
                makes a notification under subparagraph (B), 
                the government shall initiate judicial review 
                under the procedures established in section 
                3511 of title 18, United States Code, unless an 
                appropriate official of the government agency 
                authorized to conduct investigations of, or 
                intelligence or counterintelligence activities 
                or analysis related to, international terrorism 
                makes a notification under paragraph (4).
          (4) Termination.--In the case of any request for 
        which a consumer reporting agency has submitted a 
        notification under paragraph (3)(B), if the facts 
        supporting a nondisclosure requirement cease to exist, 
        an appropriate official of the government agency 
        authorized to conduct investigations of, or 
        intelligence or counterintelligence activities or 
        analysis related to, international terrorism shall 
        promptly notify the consumer reporting agency, or 
        officer, employee, or agent thereof, subject to the 
        nondisclosure requirement that the nondisclosure 
        requirement is no longer in effect.
    (d) Rule of Construction.--Nothing in section 1681u of this 
title shall be construed to limit the authority of the Director 
of the Federal Bureau of Investigation under this section.
    (e) Safe Harbor.--Notwithstanding any other provision of 
this subchapter, any consumer reporting agency or agent or 
employee thereof making disclosure of consumer reports or other 
information pursuant to this section in good-faith reliance 
upon a certification of a government agency pursuant to the 
provisions of this section shall not be liable to any person 
for such disclosure under this subchapter [FN1], the 
constitution of any State, or any law or regulation of any 
State or any political subdivision of any State.
    (f) Reports to Congress.--
          (1) On a semi-annual basis, the Attorney General 
        shall fully inform the Committee on the Judiciary, the 
        Committee on Financial Services, and the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Committee on the Judiciary, the 
        Committee on Banking, Housing, and Urban Affairs, and 
        the Select Committee on Intelligence of the Senate 
        concerning all requests made pursuant to subsection 
        (a).
          (2) In the case of the semiannual reports required to 
        be submitted under paragraph (1) to the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Select Committee on 
        Intelligence of the Senate, the submittal dates for 
        such reports shall be as provided in section 415b of 
        title 50.

           *       *       *       *       *       *       *


                TITLE 18--CRIMES AND CRIMINAL PROCEDURE

                             PART I--CRIMES

      CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND 
TRANSACTIONAL RECORDS ACCESS

           *       *       *       *       *       *       *



SEC 2709. COUNTERINTELLIGENCE ACCESS TO TELEPHONE TOLL AND 
                    TRANSACTIONAL RECORDS.

    (a) Duty To Provide.--A wire or electronic communication 
service provider shall comply with a request for subscriber 
information and toll billing records information, or electronic 
communication transactional records in its custody or 
possession made by the Director of the Federal Bureau of 
Investigation under subsection (b) of this section.
    (b) Required Certification.--The Director of the Federal 
Bureau of Investigation, or his designee in a position not 
lower than Deputy Assistant Director at Bureau headquarters or 
a Special Agent in Charge in a Bureau field office designated 
by the Director, may--
          (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 his designee) 
        certifies in writing to the wire or electronic 
        communication service provider to which the request is 
        made that 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
          (2) request the name, address, and length of service 
        of a person or entity if the Director (or his designee) 
        certifies in writing to the wire or electronic 
        communication service provider to which the request is 
        made that 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.
    [(c) Prohibition of Certain Disclosure.--
          [(1) If the Director of the Federal Bureau of 
        Investigation, or his designee in a position not lower 
        than Deputy Assistant Director at Bureau headquarters 
        or a Special Agent in Charge in a Bureau field office 
        designated by the Director, certifies that otherwise 
        there may result 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, no wire or 
        electronic communications service provider, or officer, 
        employee, or agent thereof, shall disclose to any 
        person (other than those to whom such disclosure is 
        necessary to comply with the request or an attorney to 
        obtain legal advice or legal assistance with respect to 
        the request) that the Federal Bureau of Investigation 
        has sought or obtained access to information or records 
        under this section.
          [(2) The request shall notify the person or entity to 
        whom the request is directed of the nondisclosure 
        requirement under paragraph (1).
          [(3) Any recipient disclosing to those persons 
        necessary to comply with the request or to an attorney 
        to obtain legal advice or legal assistance with respect 
        to the request shall inform such person of any 
        applicable nondisclosure requirement. Any person who 
        receives a disclosure under this subsection shall be 
        subject to the same prohibitions on disclosure under 
        paragraph (1).
          [(4) At the request of the Director of the Federal 
        Bureau of Investigation or the designee of the 
        Director, any person making or intending to make a 
        disclosure under this section shall identify to the 
        Director or such designee the person to whom such 
        disclosure will be made or to whom such disclosure was 
        made prior to the request, except that nothing in this 
        section shall require a person to inform the Director 
        or such designee of the identity of an attorney to whom 
        disclosure was made or will be made to obtain legal 
        advice or legal assistance with respect to the request 
        under subsection (a).]
    (c) Written Statement.--The Director of the Federal Bureau 
of Investigation, or a designee in a position not lower than 
Deputy Assistant Director at Bureau headquarters or a Special 
Agent in Charge in a Bureau field office designated by the 
Director, may make a certification under subsection (b) only 
upon a written statement, which shall be retained by the 
Federal Bureau of Investigation, of specific facts showing that 
there are reasonable grounds to believe that the information 
sought is relevant to the authorized investigation described in 
subsection (b).
    (d) Prohibition of Certain Disclosure.--
          (1) Prohibition.--
                  (A) In general.--If a certification is issued 
                under subparagraph (B) and notice of the right 
                to judicial review under paragraph (3) is 
                provided, no wire or electronic communication 
                service provider, or officer, employee, or 
                agent thereof, that receives a request under 
                subsection (a), shall disclose to any person 
                that the Director of the Federal Bureau of 
                Investigation has sought or obtained access to 
                information or records under this section.
                  (B) Certification.--The requirements of 
                subparagraph (A) shall apply if the Director of 
                the Federal Bureau of Investigation, or a 
                designee of the Director whose rank shall be no 
                lower than Deputy Assistant Director at Bureau 
                headquarters or a Special Agent in Charge of a 
                Bureau field office, certifies that, absent a 
                prohibition of disclosure under this 
                subsection, there may result--
                          (i) a danger to the national security 
                        of the United States;
                          (ii) interference with a criminal, 
                        counterterrorism, or 
                        counterintelligence investigation;
                          (iii) interference with diplomatic 
                        relations; or
                          (iv) danger to the life or physical 
                        safety of any person.
          (2) Exception.--
                  (A) In general.--A wire or electronic 
                communication service provider, or officer, 
                employee, or agent thereof, that receives a 
                request under subsection (a) may disclose 
                information otherwise subject to any applicable 
                nondisclosure requirement to--
                          (i) those persons to whom disclosure 
                        is necessary in order to comply with 
                        the request;
                          (ii) an attorney in order to obtain 
                        legal advice or assistance regarding 
                        the request; or
                          (iii) other persons as permitted by 
                        the Director of the Federal Bureau of 
                        Investigation or the designee of the 
                        Director.
                  (B) Persons necessary for compliance.--Upon a 
                request by the Director of the Federal Bureau 
                of Investigation or the designee of the 
                Director, those persons to whom disclosure will 
                be made under subparagraph (A)(i) or to whom 
                such disclosure was made before the request 
                shall be identified to the Director or the 
                designee.
                  (C) Nondisclosure requirement.--A person to 
                whom disclosure is made under subparagraph (A) 
                shall be subject to the nondisclosure 
                requirements applicable to a person to whom a 
                request is issued under subsection (a) in the 
                same manner as the person to whom the request 
                is issued.
                  (D) Notice.--Any recipient that discloses to 
                a person described in subparagraph (A) 
                information otherwise subject to a 
                nondisclosure requirement shall inform the 
                person of the applicable nondisclosure 
                requirement.
          (3) Right to judicial review.--
                  (A) In general.--A wire or electronic 
                communications service provider that receives a 
                request under subsection (a) shall have the 
                right to judicial review of any applicable 
                nondisclosure requirement.
                  (B) Notification.--A request under subsection 
                (a) shall state that if the recipient wishes to 
                have a court review a nondisclosure 
                requirement, the recipient shall notify the 
                Government.
                  (C) Initiation of proceedings.--If a 
                recipient of a request under subsection (a) 
                makes a notification under subparagraph (B), 
                the Government shall initiate judicial review 
                under the procedures established in section 
                3511 of this title, unless an appropriate 
                official of the Federal Bureau of the 
                Investigation makes a notification under 
                paragraph (4).
          (4) Termination.--In the case of any request for 
        which a recipient has submitted a notification under 
        paragraph (3)(B), if the facts supporting a 
        nondisclosure requirement cease to exist, an 
        appropriate official of the Federal Bureau of 
        Investigation shall promptly notify the wire or 
        electronic service provider, or officer, employee, or 
        agent thereof, subject to the nondisclosure requirement 
        that the nondisclosure requirement is no longer in 
        effect.
    (e)[(d)] Dissemination by Bureau.--The Federal Bureau of 
Investigation may disseminate information and records obtained 
under this section only as provided in guidelines approved by 
the Attorney General for foreign intelligence collection and 
foreign counterintelligence investigations conducted by the 
Federal Bureau of Investigation, and, with respect to 
dissemination to an agency of the United States, only if such 
information is clearly relevant to the authorized 
responsibilities of such agency.
    (f)[(e)] Requirement That Certain Congressional Bodies Be 
Informed.--On a semiannual basis the Director of the Federal 
Bureau of Investigation shall fully inform the Permanent Select 
Committee on Intelligence of the House of Representatives and 
the Select Committee on Intelligence of the Senate, and the 
Committee on the Judiciary of the House of Representatives and 
the Committee on the Judiciary of the Senate, concerning all 
requests made under subsection (b) of this section.
    (g)[(f)] Libraries.--A library (as that term is defined in 
section 213(1) of the Library Services and Technology Act (20 
U.S.C. 9122(1)), the services of which include access to the 
Internet, books, journals, magazines, newspapers, or other 
similar forms of communication in print or digitally by patrons 
for their use, review, examination, or circulation, is not a 
wire or electronic communication service provider for purposes 
of this section, unless the library is providing the services 
defined in section 2510(15) (``electronic communication 
service'') of this title.

           *       *       *       *       *       *       *


SEC. 3103A. ADDITIONAL GROUNDS FOR ISSUING WARRANT.

    (a) In General.--In addition to the grounds for issuing a 
warrant in section 3103 of this title, a warrant may be issued 
to search for and seize any property that constitutes evidence 
of a criminal offense in violation of the laws of the United 
States.
    (b) Delay.--With respect to the issuance of any warrant or 
court order under this section, or any other rule of law, to 
search for and seize any property or material that constitutes 
evidence of a criminal offense in violation of the laws of the 
United States, any notice required, or that may be required, to 
be given may be delayed if--
          (1) the court finds reasonable cause to believe that 
        providing immediate notification of the execution of 
        the warrant may have an adverse result (as defined in 
        section 2705, except if the adverse results consist 
        only of unduly delaying a trial);
          (2) the warrant prohibits the seizure of any tangible 
        property, any wire or electronic communication (as 
        defined in section 2510), or, except as expressly 
        provided in chapter 121, any stored wire or electronic 
        information, except where the court finds reasonable 
        necessity for the seizure; and
          (3) the warrant provides for the giving of such 
        notice within a reasonable period not to exceed 7 [30] 
        days after the date of its execution, or on a later 
        date certain if the facts of the case justify a longer 
        period of delay.
    (c) Extensions of Delay.--Any period of delay authorized by 
this section may be extended by the court for good cause shown, 
subject to the condition that extensions should only be granted 
upon an updated showing of the need for further delay and that 
each additional delay should be limited to periods of 90 days 
or less, unless the facts of the case justify a longer period 
of delay.
    (d) Reports.--
          (1) Report by judge.--Not later than 30 days after 
        the expiration of a warrant authorizing delayed notice 
        (including any extension thereof) entered under this 
        section, or the denial of such warrant (or request for 
        extension), the issuing or denying judge shall report 
        to the Administrative Office of the United States 
        Courts--
                  (A) the fact that a warrant was applied for;
                  (B) the fact that the warrant or any 
                extension thereof was granted as applied for, 
                was modified, or was denied;
                  (C) the period of delay in the giving of 
                notice authorized by the warrant, and the 
                number and duration of any extensions; and
                  (D) the offense specified in the warrant or 
                application.
          (2) Report by Administrative Office of the United 
        States Courts.--Beginning with the fiscal year ending 
        September 30, 2007, the Director of the Administrative 
        Office of the United States Courts shall transmit to 
        Congress annually a full and complete report 
        summarizing the data required to be filed with the 
        Administrative Office by paragraph (1), including the 
        number of applications for warrants and extensions of 
        warrants authorizing delayed notice, and the number of 
        such warrants and extensions granted or denied during 
        the preceding fiscal year.
          (3) Regulations.--The Director of the Administrative 
        Office of the United States Courts, in consultation 
        with the Attorney General, is authorized to issue 
        binding regulations dealing with the content and form 
        of the reports required to be filed under paragraph 
        (1).

SEC. 3511. JUDICIAL REVIEW OF REQUESTS FOR INFORMATION.

    (a) The recipient of a request for records, a report, or 
other information under section 2709(b) of this title, section 
626(a) or (b) or 627(a) of the Fair Credit Reporting Act, 
section 1114(a)(5)(A) of the Right to Financial Privacy Act, or 
section 802(a) of the National Security Act of 1947 may, in the 
United States district court for the district in which that 
person or entity does business or resides, petition for an 
order modifying or setting aside the request. The court may 
modify or set aside the request if compliance would be 
unreasonable, oppressive, or otherwise unlawful.
    [(b)(1) The recipient of a request for records, a report, 
or other information under section 2709(b) of this title, 
section 626(a) or (b) or 627(a) of the Fair Credit Reporting 
Act, section 1114(a)(5)(A) of the Right to Financial Privacy 
Act, or section 802(a) of the National Security Act of 1947, 
may petition any court described in subsection (a) for an order 
modifying or setting aside a nondisclosure requirement imposed 
in connection with such a request.
    [(2) If the petition is filed within one year of the 
request for records, a report, or other information under 
section 2709(b) of this title, section 626(a) or (b) or 627(a) 
of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the 
Right to Financial Privacy Act, or section 802(a) of the 
National Security Act of 1947, the court may modify or set 
aside such a nondisclosure requirement if it finds that there 
is no reason to believe that disclosure may endanger the 
national security of the United States, interfere with a 
criminal, counterterrorism, or counterintelligence 
investigation, interfere with diplomatic relations, or endanger 
the life or physical safety of any person. If, at the time of 
the petition, the Attorney General, Deputy Attorney General, an 
Assistant Attorney General, or the Director of the Federal 
Bureau of Investigation, or in the case of a request by a 
department, agency, or instrumentality of the Federal 
Government other than the Department of Justice, the head or 
deputy head of such department, agency, or instrumentality, 
certifies that disclosure may endanger the national security of 
the United States or interfere with diplomatic relations, such 
certification shall be treated as conclusive unless the court 
finds that the certification was made in bad faith.
    [(3) If the petition is filed one year or more after the 
request for records, a report, or other information under 
section 2709(b) of this title, section 626(a) or (b) or 627(a) 
of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the 
Right to Financial Privacy Act, or section 802(a) of the 
National Security Act of 1947, the Attorney General, Deputy 
Attorney General, an Assistant Attorney General, or the 
Director of the Federal Bureau of Investigation, or his 
designee in a position not lower than Deputy Assistant Director 
at Bureau headquarters or a Special Agent in Charge in a Bureau 
field office designated by the Director, or in the case of a 
request by a department, agency, or instrumentality of the 
Federal Government other than the Federal Bureau of 
Investigation, the head or deputy head of such department, 
agency, or instrumentality, within ninety days of the filing of 
the petition, shall either terminate the nondisclosure 
requirement or re-certify 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. In the event of re-certification, the court may modify 
or set aside such a nondisclosure requirement if it finds that 
there is no reason to believe that disclosure may endanger the 
national security of the United States, interfere with a 
criminal, counterterrorism, or counterintelligence 
investigation, interfere with diplomatic relations, or endanger 
the life or physical safety of any person. If the 
recertification that disclosure may endanger the national 
security of the United States or interfere with diplomatic 
relations is made by the Attorney General, Deputy Attorney 
General, an Assistant Attorney General, or the Director of the 
Federal Bureau of Investigation, such certification shall be 
treated as conclusive unless the court finds that the 
recertification was made in bad faith. If the court denies a 
petition for an order modifying or setting aside a 
nondisclosure requirement under this paragraph, the recipient 
shall be precluded for a period of one year from filing another 
petition to modify or set aside such nondisclosure 
requirement.]
    (b) Nondisclosure.--
          (1) In general.--
                  (A) Notice.--If a recipient of a request or 
                order for a report, records, or other 
                information under section 2709 of this title, 
                section 626 or 627 of the Fair Credit Reporting 
                Act (15 U.S.C. 1681u and 1681v), section 1114 
                of the Right to Financial Privacy Act of 1978 
                (12 U.S.C. 3414), or section 802 of the 
                National Security Act of 1947 (50 U.S.C. 436), 
                wishes to have a court review a nondisclosure 
                requirement imposed in connection with the 
                request or order, the recipient shall notify 
                the Government.
                  (B) Application.--Not later than 30 days 
                after the date of receipt of a notification 
                under subparagraph (A), the Government shall 
                apply for an order prohibiting the disclosure 
                of the existence or contents of the relevant 
                request or order. An application under this 
                subparagraph may be filed in the district court 
                of the United States for any district within 
                which the authorized investigation that is the 
                basis for the request or order is being 
                conducted. The applicable nondisclosure 
                requirement shall remain in effect during the 
                pendency of proceedings relating to the 
                requirement.
                  (C) Consideration.--A district court of the 
                United States that receives an application 
                under subparagraph (B) should rule 
                expeditiously, and shall, subject to paragraph 
                (3), issue a nondisclosure order that includes 
                conditions appropriate to the circumstances.
          (2) Application contents.--An application for a 
        nondisclosure order or extension thereof under this 
        subsection shall include a certification from the 
        Attorney General, Deputy Attorney General, an Assistant 
        Attorney General, or the Director of the Federal Bureau 
        of Investigation, or in the case of a request by a 
        department, agency, or instrumentality of the Federal 
        Government other than the Department of Justice, the 
        head or deputy head of the department, agency, or 
        instrumentality, containing a statement of specific and 
        articulable facts indicating that, absent a prohibition 
        of disclosure under this subsection, there may result--
                  (A) a danger to the national security of the 
                United States;
                  (B) interference with a criminal, 
                counterterrorism, or counterintelligence 
                investigation;
                  (C) interference with diplomatic relations; 
                or
                  (D) danger to the life or physical safety of 
                any person.
          (3) Standard.--A district court of the United States 
        shall issue a nondisclosure requirement order or 
        extension thereof under this subsection if the court 
        determines, giving substantial weight to the 
        certification under paragraph (2) that there is reason 
        to believe that disclosure of the information subject 
        to the nondisclosure requirement during the applicable 
        time period will result in--
                  (A) a danger to the national security of the 
                United States;
                  (B) interference with a criminal, 
                counterterrorism, or counterintelligence 
                investigation;
                  (C) interference with diplomatic relations; 
                or
                  (D) danger to the life or physical safety of 
                any person.
    (c) In the case of a failure to comply with a request for 
records, a report, or other information made to any person or 
entity under section 2709(b) of this title, section 626(a) or 
(b) or 627(a) of the Fair Credit Reporting Act, section 
1114(a)(5)(A) of the Right to Financial Privacy Act, or section 
802(a) of the National Security Act of 1947, the Attorney 
General may invoke the aid of any district court of the United 
States within the jurisdiction in which the investigation is 
carried on or the person or entity resides, carries on 
business, or may be found, to compel compliance with the 
request. The court may issue an order requiring the person or 
entity to comply with the request. Any failure to obey the 
order of the court may be punished by the court as contempt 
thereof. Any process under this section may be served in any 
judicial district in which the person or entity may be found.
    (d) In all proceedings under this section, subject to any 
right to an open hearing in a contempt proceeding, the court 
must close any hearing to the extent necessary to prevent an 
unauthorized disclosure of a request for records, a report, or 
other information made to any person or entity under section 
2709(b) of this title, section 626(a) or (b) or 627(a) of the 
Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right 
to Financial Privacy Act, or section 802(a) of the National 
Security Act of 1947. Petitions, filings, records, orders, and 
subpoenas must also be kept under seal to the extent and as 
long as necessary to prevent the unauthorized disclosure of a 
request for records, a report, or other information made to any 
person or entity under section 2709(b) of this title, section 
626(a) or (b) or 627(a) of the Fair Credit Reporting Act, 
section 1114(a)(5)(A) of the Right to Financial Privacy Act, or 
section 802(a) of the National Security Act of 1947.
    (e) In all proceedings under this section, the court shall, 
upon request of the government, review ex parte and in camera 
any government submission or portions thereof, which may 
include classified information.

           *       *       *       *       *       *       *


TITLE 50--WAR AND NATIONAL DEFENSE

           *       *       *       *       *       *       *


                     CHAPTER 15--NATIONAL SECURITY


            Subchapter VI--Access to Classified Information


SEC. 436. REQUESTS BY AUTHORIZED INVESTIGATIVE AGENCIES.

    (a) Generally.--
          (1) Any authorized investigative agency may request 
        from any financial agency, financial institution, or 
        holding company, or from any consumer reporting agency, 
        such financial records, other financial information, 
        and consumer reports as may be necessary in order to 
        conduct any authorized law enforcement investigation, 
        counterintelligence inquiry, or security determination. 
        Any authorized investigative agency may also request 
        records maintained by any commercial entity within the 
        United States pertaining to travel by an employee in 
        the executive branch of Government outside the United 
        States.
          (2) Requests may be made under this section where--
                  (A) the records sought pertain to a person 
                who is or was an employee in the executive 
                branch of Government required by the President 
                in an Executive order or regulation, as a 
                condition of access to classified information, 
                to provide consent, during a background 
                investigation and for such time as access to 
                the information is maintained, and for a period 
                of not more than three years thereafter, 
                permitting access to financial records, other 
                financial information, consumer reports, and 
                travel records; and
                  (B)(i) there are reasonable grounds to 
                believe, based on credible information, that 
                the person is, or may be, disclosing classified 
                information in an unauthorized manner to a 
                foreign power or agent of a foreign power;
                  (ii) information the employing agency deems 
                credible indicates the person has incurred 
                excessive indebtedness or has acquired a level 
                of affluence which cannot be explained by other 
                information known to the agency; or
                  (iii) circumstances indicate the person had 
                the capability and opportunity to disclose 
                classified information which is known to have 
                been lost or compromised to a foreign power or 
                an agent of a foreign power.
          (3) Each such request--
                  (A) shall be accompanied by a written 
                certification signed by the department or 
                agency head or deputy department or agency head 
                concerned, or by a senior official designated 
                for this purpose by the department or agency 
                head concerned (whose rank shall be no lower 
                than Assistant Secretary or Assistant 
                Director), and shall certify that--
                          (i) the person concerned is or was an 
                        employee within the meaning of 
                        paragraph (2)(A);
                          (ii) the request is being made 
                        pursuant to an authorized inquiry or 
                        investigation and is authorized under 
                        this section; and
                          (iii) the records or information to 
                        be reviewed are records or information 
                        which the employee has previously 
                        agreed to make available to the 
                        authorized investigative agency for 
                        review;
                  (B) shall contain a copy of the agreement 
                referred to in subparagraph (A)(iii);
                  (C) shall identify specifically or by 
                category the records or information to be 
                reviewed; and
                  (D) shall inform the recipient of the request 
                of the prohibition described in subsection (b) 
                of this section.
          (4) A department or agency head, deputy department or 
        agency head, or senior official described in paragraph 
        (3)(A) may make a certification under paragraph (3)(A) 
        only upon a written statement, which shall be retained 
        by the authorized investigative agency, of specific 
        facts showing that there are reasonable grounds to 
        believe that the information sought is relevant to the 
        authorized inquiry or investigation described in 
        paragraph (3)(A)(ii).
    [(b) Prohibition of Certain Disclosure.--
          [(1) If an authorized investigative agency described 
        in subsection (a) of this section certifies that 
        otherwise there may result 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, 
        no governmental or private entity, or officer, 
        employee, or agent of such entity, may disclose to any 
        person (other than those to whom such disclosure is 
        necessary to comply with the request or an attorney to 
        obtain legal advice or legal assistance with respect to 
        the request) that such entity has received or satisfied 
        a request made by an authorized investigative agency 
        under this section.
          [(2) The request shall notify the person or entity to 
        whom the request is directed of the nondisclosure 
        requirement under paragraph (1).
          [(3) Any recipient disclosing to those persons 
        necessary to comply with the request or to an attorney 
        to obtain legal advice or legal assistance with respect 
        to the request shall inform such persons of any 
        applicable nondisclosure requirement. Any person who 
        receives a disclosure under this subsection shall be 
        subject to the same prohibitions on disclosure under 
        paragraph (1).
          [(4) At the request of the authorized investigative 
        agency, any person making or intending to make a 
        disclosure under this section shall identify to the 
        requesting official of the authorized investigative 
        agency the person to whom such disclosure will be made 
        or to whom such disclosure was made prior to the 
        request, except that nothing in this section shall 
        require a person to inform the requesting official of 
        the identity of an attorney to whom disclosure was made 
        or will be made to obtain legal advice or legal 
        assistance with respect to the request under subsection 
        (a) of this section.]
    (b) Prohibition of Certain Disclosure.--
          (1) Prohibition.--
                  (A) In general.--If a certification is issued 
                under subparagraph (B) and notice of the right 
                to judicial review under paragraph (4) is 
                provided, no governmental or private entity, or 
                officer, employee, or agent thereof, that 
                receives a request under subsection (a), shall 
                disclose to any person the particular 
                information specified in the certification 
                during the time period to which the 
                certification applies, which may be not longer 
                than 1 year.
                  (B) Certification.--The requirements of 
                subparagraph (A) shall apply if the head of an 
                authorized investigative agency described in 
                subsection (a), or a designee, certifies that, 
                absent a prohibition of disclosure under this 
                subsection, there may result--
                          (i) a danger to the national security 
                        of the United States;
                          (ii) interference with a criminal, 
                        counterterrorism, or 
                        counterintelligence investigation;
                          (iii) interference with diplomatic 
                        relations; or
                          (iv) danger to the life or physical 
                        safety of any person.
          (2) Exception.--
                  (A) In general.--A governmental or private 
                entity, or officer, employee, or agent thereof, 
                that receives a request under subsection (a) 
                may disclose information otherwise subject to 
                any applicable nondisclosure requirement to--
                          (i) those persons to whom disclosure 
                        is necessary in order to comply with 
                        the request;
                          (ii) an attorney in order to obtain 
                        legal advice or assistance regarding 
                        the request; or
                          (iii) other persons as permitted by 
                        the head of the authorized 
                        investigative agency described in 
                        subsection (a).
                  (B) Nondisclosure requirement.--A person to 
                whom disclosure is made under subparagraph (A) 
                shall be subject to the nondisclosure 
                requirements applicable to a person to whom a 
                request is issued under subsection (a) in the 
                same manner as the person to whom the request 
                is issued.
                  (C) Notice.--Any recipient that discloses to 
                a person described in subparagraph (A) 
                information otherwise subject to a 
                nondisclosure requirement shall inform the 
                person of the applicable nondisclosure 
                requirement.
          (3) Extension.--The head of an authorized 
        investigative agency described in subsection (a), or a 
        designee, may extend a nondisclosure requirement for 
        additional periods of not longer than 1 year if, at the 
        time of each extension, a new certification is made 
        under paragraph (1)(B) and notice is provided to the 
        recipient of the applicable request that the 
        nondisclosure requirement has been extended and the 
        recipient has the right to judicial review of the 
        nondisclosure requirement.
          (4) Right to judicial review.--
                  (A) In general.--A governmental or private 
                entity that receives a request under subsection 
                (a) shall have the right to judicial review of 
                any applicable nondisclosure requirement and 
                any extension thereof.
                  (B) Timing.--
                          (i) In general.--A request under 
                        subsection (a) shall state that if the 
                        recipient wishes to have a court review 
                        a nondisclosure requirement, the 
                        recipient shall notify the Government 
                        not later than 21 days after the date 
                        of receipt of the request.
                          (ii) Extension.--A notice that the 
                        applicable nondisclosure requirement 
                        has been extended under paragraph (3) 
                        shall state that if the recipient 
                        wishes to have a court review the 
                        nondisclosure requirement, the 
                        recipient shall notify the Government 
                        not later than 21 days after the date 
                        of receipt of the notice.
                  (C) Initiation of proceedings.--If a 
                recipient of a request under subsection (a) 
                makes a notification under subparagraph (B), 
                the Government shall initiate judicial review 
                under the procedures established in section 
                3511 of title 18, United States Code.
          (5) Termination.--If the facts supporting a 
        nondisclosure requirement cease to exist prior to the 
        applicable time period of the nondisclosure 
        requirement, an appropriate official of the authorized 
        investigative agency described in subsection (a) shall 
        promptly notify the governmental or private entity, or 
        officer, employee, or agent thereof, subject to the 
        nondisclosure requirement that the nondisclosure 
        requirement is no longer in effect.
    (c) Records or Information; Inspection or Copying.--
          (1) Notwithstanding any other provision of law (other 
        than section 6103 of Title 26), an entity receiving a 
        request for records or information under subsection (a) 
        of this section shall, if the request satisfies the 
        requirements of this section, make available such 
        records or information within 30 days for inspection or 
        copying, as may be appropriate, by the agency 
        requesting such records or information.
          (2) Any entity (including any officer, employee, or 
        agent thereof) that discloses records or information 
        for inspection or copying pursuant to this section in 
        good faith reliance upon the certifications made by an 
        agency pursuant to this section shall not be liable for 
        any such disclosure to any person under this 
        subchapter, the constitution of any State, or any law 
        or regulation of any State or any political subdivision 
        of any State.
    (d) Reimbursement of Costs.--Any agency requesting records 
or information under this section may, subject to the 
availability of appropriations, reimburse a private entity for 
any cost reasonably incurred by such entity in responding to 
such request, including the cost of identifying, reproducing, 
or transporting records or other data.
    (e) Dissemination of Records or Information Received.--An 
agency receiving records or information pursuant to a request 
under this section may disseminate the records or information 
obtained pursuant to such request outside the agency only--
          (1) to the agency employing the employee who is the 
        subject of the records or information;
          (2) to the Department of Justice for law enforcement 
        or counterintelligence purposes; or
          (3) with respect to dissemination to an agency of the 
        United States, if such information is clearly relevant 
        to the authorized responsibilities of such agency.
    (f) Construction of Section.--Nothing in this section may 
be construed to affect the authority of an investigative agency 
to obtain information pursuant to the Right to Financial 
Privacy Act (12 U.S.C. 3401 et seq.) or the Fair Credit 
Reporting Act (15 U.S.C. 1681 et seq.).

           *       *       *       *       *       *       *


             CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE


 Subchapter III--Pen Registers and Trap and Trace Devices for Foreign 
                         Intelligence Purposes


SEC. 1841. DEFINITION.

    As used in this subchapter:
          (1) The terms ``foreign power'', ``agent of a foreign 
        power'', ``international terrorism'', ``foreign 
        intelligence information'', ``Attorney General'', 
        ``United States person'', ``United States'', 
        ``person'', and ``State'' shall have the same meanings 
        as in section 1801 of this title.
          (2) The terms ``pen register'' and ``trap and trace 
        device'' have the meanings given such terms in section 
        3127 of Title 18.
          (3) The term ``aggrieved person'' means any person--
                  (A) whose telephone line was subject to the 
                installation or use of a pen register or trap 
                and trace device authorized by this subchapter; 
                or
                  (B) whose communication instrument or device 
                was subject to the use of a pen register or 
                trap and trace device authorized by this 
                subchapter to capture incoming electronic or 
                other communications impulses.
          (4) The term ``minimization procedures'' means--
                  (A) specific procedures, that are reasonably 
                designed in light of the purpose and technique 
                of an order for the installation and use of a 
                pen register or trap and trace device, to 
                minimize the retention, and prohibit the 
                dissemination, of nonpublicly available 
                information known to concern unconsenting 
                United States persons consistent with the need 
                of the United States to obtain, produce, and 
                disseminate foreign intelligence information;
                  (B) procedures that require that nonpublicly 
                available information, which is not foreign 
                intelligence information shall not be 
                disseminated in a manner that identifies any 
                United States person, without such person's 
                consent, unless such person's identity is 
                necessary to understand foreign intelligence 
                information or assess its importance; and
                  (C) notwithstanding subparagraphs (A) and 
                (B), procedures that allow for the retention 
                and dissemination of information that is 
                evidence of a crime which has been, is being, 
                or is about to be committed and that is to be 
                retained or disseminated for law enforcement 
                purposes.

SEC. 1842. PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN 
                    INTELLIGENCE AND INTERNATIONAL TERRORISM 
                    INVESTIGATIONS.

    (a) Application for Authorization or Approval.--
          (1) Notwithstanding any other provision of law, the 
        Attorney General or a designated attorney for the 
        Government may make an application for an order or an 
        extension of an order authorizing or approving the 
        installation and use of a pen register or trap and 
        trace device for any investigation to obtain foreign 
        intelligence information not concerning a United States 
        person or to protect against international terrorism or 
        clandestine intelligence activities, 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 which is 
        being conducted by the Federal Bureau of Investigation 
        under such guidelines as the Attorney General approves 
        pursuant to Executive Order No. 12333, or a successor 
        order.
          (2) The authority under paragraph (1) is in addition 
        to the authority under subchapter I of this chapter to 
        conduct the electronic surveillance referred to in that 
        paragraph.
    (b) Form of Application; Recipient.--Each application under 
this section shall be in writing under oath or affirmation to--
          (1) a judge of the court established by section 
        1803(a) of this title; or
          (2) a United States Magistrate Judge under chapter 43 
        of Title 28, who is publicly designated by the Chief 
        Justice of the United States to have the power to hear 
        applications for and grant orders approving the 
        installation and use of a pen register or trap and 
        trace device on behalf of a judge of that court.
    (c) Executive Approval; Contents of Application.--Each 
application under this section shall require the approval of 
the Attorney General, or a designated attorney for the 
Government, and shall include--
          (1) the identity of the Federal officer seeking to 
        use the pen register or trap and trace device covered 
        by the application; [and]
          (2) [a certification by the applicant] a statement of 
        the facts and circumstances relied upon by the 
        applicant to justify the belief of the applicant that 
        the information likely to be obtained is foreign 
        intelligence information not concerning a United States 
        person or is relevant to an ongoing investigation to 
        protect against international terrorism or clandestine 
        intelligence activities, 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
          (3) a statement of whether minimization procedures 
        are being proposed and, if so, a statement of the 
        proposed minimization procedures.
    (d) Ex Parte Judicial Order of Approval.--
          (1) Upon an application made pursuant to this 
        section, the judge shall enter an ex parte order as 
        requested, or as modified, approving the installation 
        and use of a pen register or trap and trace device if 
        the judge finds that the application satisfies the 
        requirements of this section, and if, in exceptional 
        circumstances, minimization procedures are ordered, 
        that the proposed minimization procedures meet the 
        definition of minimization procedures under this title.
          (2) An order issued under this section----
                  (A) shall specify--
                          (i) the identity, if known, of the 
                        person who is the subject of the 
                        investigation;
                          (ii) the identity, if known, of the 
                        person to whom is leased or in whose 
                        name is listed the telephone line or 
                        other facility to which the pen 
                        register or trap and trace device is to 
                        be attached or applied; and
                          (iii) the attributes of the 
                        communications to which the order 
                        applies, such as the number or other 
                        identifier, and, if known, the location 
                        of the telephone line or other facility 
                        to which the pen register or trap and 
                        trace device is to be attached or 
                        applied and, in the case of a trap and 
                        trace device, the geographic limits of 
                        the trap and trace order;
                  (B) shall direct that--
                          (i) upon request of the applicant, 
                        the provider of a wire or electronic 
                        communication service, landlord, 
                        custodian, or other person shall 
                        furnish any information, facilities, or 
                        technical assistance necessary to 
                        accomplish the installation and 
                        operation of the pen register or trap 
                        and trace device in such a manner as 
                        will protect its secrecy and produce a 
                        minimum amount of interference with the 
                        services that such provider, landlord, 
                        custodian, or other person is providing 
                        the person concerned;
                          (ii) such provider, landlord, 
                        custodian, or other person--
                                  (I) shall not disclose the 
                                existence of the investigation 
                                or of the pen register or trap 
                                and trace device to any person 
                                unless or until ordered by the 
                                court; and
                                  (II) shall maintain, under 
                                security procedures approved by 
                                the Attorney General and the 
                                Director of National 
                                Intelligence pursuant to 
                                section 1805(b)(2)(C) of this 
                                title, any records concerning 
                                the pen register or trap and 
                                trace device or the aid 
                                furnished; [and]
                          (iii) the applicant shall compensate 
                        such provider, landlord, custodian, or 
                        other person for reasonable expenses 
                        incurred by such provider, landlord, 
                        custodian, or other person in providing 
                        such information, facilities, or 
                        technical assistance; and
                          (iv) if applicable, the minimization 
                        procedures be followed; and
                  (C) shall direct that, upon the request of 
                the applicant, the provider of a wire or 
                electronic communication service shall disclose 
                to the Federal officer using the pen register 
                or trap and trace device covered by the order--
                          (i) in the case of the customer or 
                        subscriber using the service covered by 
                        the order (for the period specified by 
                        the order)--
                                  (I) the name of the customer 
                                or subscriber;
                                  (II) the address of the 
                                customer or subscriber;
                                  (III) the telephone or 
                                instrument number, or other 
                                subscriber number or 
                                identifier, of the customer or 
                                subscriber, including any 
                                temporarily assigned network 
                                address or associated routing 
                                or transmission information;
                                  (IV) the length of the 
                                provision of service by such 
                                provider to the customer or 
                                subscriber and the types of 
                                services utilized by the 
                                customer or subscriber;
                                  (V) in the case of a provider 
                                of local or long distance 
                                telephone service, any local or 
                                long distance telephone records 
                                of the customer or subscriber;
                                  (VI) if applicable, any 
                                records reflecting period of 
                                usage (or sessions) by the 
                                customer or subscriber; and
                                  (VII) any mechanisms and 
                                sources of payment for such 
                                service, including the number 
                                of any credit card or bank 
                                account utilized for payment 
                                for such service; and
                          (ii) if available, with respect to 
                        any customer or subscriber of incoming 
                        or outgoing communications to or from 
                        the service covered by the order--
                                  (I) the name of such customer 
                                or subscriber;
                                  (II) the address of such 
                                customer or subscriber;
                                  (III) the telephone or 
                                instrument number, or other 
                                subscriber number or 
                                identifier, of such customer or 
                                subscriber, including any 
                                temporarily assigned network 
                                address or associated routing 
                                or transmission information; 
                                and
                                  (IV) the length of the 
                                provision of service by such 
                                provider to such customer or 
                                subscriber and the types of 
                                services utilized by such 
                                customer or subscriber.
    (e) Time Limitation.--
          (1) Except as provided in paragraph (2), an order 
        issued under this section shall authorize the 
        installation and use of a pen register or trap and 
        trace device for a period not to exceed 90 days. 
        Extensions of such an order may be granted, but only 
        upon an application for an order under this section and 
        upon the judicial finding required by subsection (d) of 
        this section. The period of extension shall be for a 
        period not to exceed 90 days.
          (2) In the case of an application under subsection 
        (c) of this section where the applicant has certified 
        that the information likely to be obtained is foreign 
        intelligence information not concerning a United States 
        person, an order, or an extension of an order, under 
        this section may be for a period not to exceed one 
        year.
    (f) Cause of Action Barred.--No cause of action shall lie 
in any court against any provider of a wire or electronic 
communication service, landlord, custodian, or other person 
(including any officer, employee, agent, or other specified 
person thereof) that furnishes any information, facilities, or 
technical assistance under subsection (d) of this section in 
accordance with the terms of an order issued under this 
section.
    (g) Furnishing of Results.--Unless otherwise ordered by the 
judge, the results of a pen register or trap and trace device 
shall be furnished at reasonable intervals during regular 
business hours for the duration of the order to the authorized 
Government official or officials.
    (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 any applicable 
minimization procedures by reviewing the circumstances under 
which information concerning United States persons was retained 
or disseminated.

SEC. 1843. AUTHORIZATION DURING EMERGENCIES.

    (a) Requirements for Authorization.--Notwithstanding any 
other provision of this subchapter, when the Attorney General 
makes a determination described in subsection (b) of this 
section, the Attorney General may authorize the installation 
and use of a pen register or trap and trace device on an 
emergency basis to gather foreign intelligence information not 
concerning a United States person or information to protect 
against international terrorism or clandestine intelligence 
activities, 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 if--
          (1) a judge referred to in section 1842(b) of this 
        title is informed by the Attorney General or his 
        designee at the time of such authorization that the 
        decision has been made to install and use the pen 
        register or trap and trace device, as the case may be, 
        on an emergency basis; and
          (2) an application in accordance with section 1842 of 
        this title is made to such judge as soon as 
        practicable, but not more than 7 days, after the 
        Attorney General authorizes the installation and use of 
        the pen register or trap and trace device, as the case 
        may be, under this section.
    (b) Determination of Emergency and Factual Basis.--A 
determination under this subsection is a reasonable 
determination by the Attorney General that--
          (1) an emergency requires the installation and use of 
        a pen register or trap and trace device to obtain 
        foreign intelligence information not concerning a 
        United States person or information to protect against 
        international terrorism or clandestine intelligence 
        activities, 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 before an order authorizing the 
        installation and use of the pen register or trap and 
        trace device, as the case may be, can with due 
        diligence be obtained under section 1842 of this title; 
        and
          (2) the factual basis for issuance of an order under 
        such section 1842 of this title to approve the 
        installation and use of the pen register or trap and 
        trace device, as the case may be, exists.
    (c) If the Attorney General authorizes the emergency 
installation and use of a pen register or trap and trace device 
under this section, the Attorney General shall require that 
minimization procedures be followed, if appropriate.
    (d)[(c)] Effect of Absence of Order.--
          (1) In the absence of an order applied for under 
        subsection (a)(2) of this section approving the 
        installation and use of a pen register or trap and 
        trace device authorized under this section, the 
        installation and use of the pen register or trap and 
        trace device, as the case may be, shall terminate at 
        the earlier of--
                  (A) when the information sought is obtained;
                  (B) when the application for the order is 
                denied under section 1842 of this title; or
                  (C) 7 days after the time of the 
                authorization by the Attorney General.
          (2) In the event that an application for an order 
        applied for under subsection (a)(2) of this section is 
        denied, or in any other case where the installation and 
        use of a pen register or trap and trace device under 
        this section is terminated and no order under section 
        1842 of this title is issued approving the installation 
        and use of the pen register or trap and trace device, 
        as the case may be, no information obtained or evidence 
        derived from the use of the pen register or trap and 
        trace device, as the case may be, 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 use of the pen register or trap and 
        trace device, as the case may be, 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.

SEC. 1845. USE OF INFORMATION.

    (a) In General.--
          (1) Information acquired from the use of a pen 
        register or trap and trace device installed pursuant to 
        this subchapter concerning any United States person may 
        be used and disclosed by Federal officers and employees 
        without the consent of the United States person only in 
        accordance with the [provisions of this section] 
        minimization procedures required under this title.
          (2) No information acquired from a pen register or 
        trap and trace device installed and used pursuant to 
        this subchapter may be used or disclosed by Federal 
        officers or employees except for lawful purposes.

           *       *       *       *       *       *       *


             CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE


 Subchapter IV--Access to Certain Business Records and Other Tangible 
                Things for Foreign Intelligence Purposes


SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS AND OTHER TANGIBLE THINGS 
                    FOR FOREIGN INTELLIGENCE AND INTERNATIONAL 
                    TERRORISM INVESTIGATIONS.

    (a)(1) Subject to paragraph (3), 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 make an application for an order requiring the 
production of any tangible things (including books, records, 
papers, documents, and other items) for an investigation to 
obtain foreign intelligence information not concerning a United 
States person or to protect against international terrorism or 
clandestine intelligence activities, 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.
    (2) An investigation conducted under this section shall--
          (A) be conducted under guidelines approved by the 
        Attorney General under Executive Order 12333 (or a 
        successor order); and
          (B) not be conducted of a United States person solely 
        upon the basis of activities protected by the first 
        amendment to the Constitution of the United States.
    (3) In the case of an application for an order requiring 
the production of library circulation records, library patron 
lists, book sales records, book customer lists, firearms sales 
records, tax return records, educational records, or medical 
records containing information that would identify a person, 
the Director of the Federal Bureau of Investigation may 
delegate the authority to make such application to either the 
Deputy Director of the Federal Bureau of Investigation or the 
Executive Assistant Director for National Security (or any 
successor position). The Deputy Director or the Executive 
Assistant Director may not further delegate such authority.
    (b) Each application under this Section--
          (1) shall be made to--
                  (A) a judge of the court established by 
                section 1803(a) of this title; or
                  (B) a United States Magistrate Judge under 
                chapter 43 of Title 28, 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 that court; and
          (2) shall include--
                  (A) [a statement of facts showing] a 
                statement of the facts and circumstances relied 
                upon by the applicant to justify the belief of 
                the applicant that there are reasonable grounds 
                to believe that the tangible things sought are 
                relevant to an authorized investigation (other 
                than a threat assessment) conducted in 
                accordance with subsection (a)(2) of this 
                section to obtain foreign intelligence 
                information not concerning a United States 
                person or to protect against international 
                terrorism or clandestine intelligence 
                activities; [clandestine intelligence 
                activities, such things being presumptively 
                relevant to an authorized investigation if the 
                applicant shows in the statement of the facts 
                that they 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 who is the subject of 
                        such authorized investigation; and]
                  [(B) an enumeration of the minimization 
                procedures adopted by the Attorney General 
                under subsection (g) of this section that are 
                applicable to the retention and dissemination 
                by the Federal Bureau of Investigation of any 
                tangible things to be made available to the 
                Federal Bureau of Investigation based on the 
                order requested in such application.]
                  (B) if the records sought are the circulation 
                records or patron lists of a library (as 
                defined in section 213(1) of the Library 
                Services and Technology Act (20 U.S.C. 
                9122(1))), a statement of facts showing that 
                there are reasonable grounds to believe that 
                the records sought--
                          (i) are relevant to an authorized 
                        investigation (other than a threat 
                        assessment) conducted in accordance 
                        with subsection (a)(2) to obtain 
                        foreign intelligence information not 
                        concerning a United States person or to 
                        protect against international terrorism 
                        or clandestine intelligence activities; 
                        and
                          (ii)(I) pertain to a foreign power or 
                        an agent of a foreign power;
                          (II) are relevant to the activities 
                        of a suspected agent of a foreign power 
                        who is the subject of such authorized 
                        investigation; or
                          (III) pertain to an individual in 
                        contact with, or known to, a suspected 
                        agent of a foreign power; and
                  (C) a statement of proposed minimization 
                procedures.
    (c)(1) Upon an application made pursuant to this section, 
if the judge finds that the application meets the requirements 
of subsections (a) and (b) and that the proposed minimization 
procedures meet the definition of minimization procedures under 
subsection (g) of this section, the judge shall enter an ex 
parte order as requested, or as modified, approving the release 
of tangible things. [Such order shall direct that minimization 
procedures adopted pursuant to subsection (g) of this section 
be followed.]
    (2) An order under this subsection--
          (A) shall describe the tangible things that are 
        ordered to be produced with sufficient particularity to 
        permit them to be fairly identified;
          (B) shall include the date on which the tangible 
        things must be provided, which shall allow a reasonable 
        period of time within which the tangible things can be 
        assembled and made available;
          (C) shall provide clear and conspicuous notice of the 
        principles and procedures described in subsection (d) 
        of this section;
          (D) may only require the production of a tangible 
        thing if such thing can be obtained with a subpoena 
        duces tecum issued by a court of the United States in 
        aid of a grand jury investigation or with any other 
        order issued by a court of the United States directing 
        the production of records or tangible things; [and]
          (E) shall not disclose that such order is issued for 
        purposes of an investigation described in subsection 
        (a) of this section[.]; and
          (F) shall direct that the minimization procedures be 
        followed.
    (d)(1) No person shall disclose to any other person that 
the Federal bureau of investigation has sought or obtained 
tangible things pursuant to an order under this section, other 
than to--
          (A) those persons to whom disclosure is necessary to 
        comply with such order;
          (B) an attorney to obtain legal advice or assistance 
        with respect to the production of things in response to 
        the order; or
          (C) other persons as permitted by the Director of the 
        Federal Bureau of Investigation or the designee of the 
        Director.
    (2)(A) A person to whom disclosure is made pursuant to 
paragraph (1) 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 such person.
    (B) Any person who discloses to a person described in 
subparagraph (A), (B), or (C) of paragraph (1) that the Federal 
Bureau of Investigation has sought or obtained tangible things 
pursuant to an order under this section shall notify such 
person of the nondisclosure requirements of this subsection.
    (C) At the request of the Director of the Federal Bureau of 
Investigation or the designee of the Director, any person 
making or intending to make a disclosure under subparagraph (A) 
or (C) of paragraph (1) shall identify to the Director or such 
designee the person to whom such disclosure will be made or to 
whom such disclosure was made prior to the request.
    (e) A person who, in good faith, produces tangible things 
under an order pursuant to this section shall not be liable to 
any other person for such production. Such production shall not 
be deemed to constitute a waiver of any privilege in any other 
proceeding or context.
    (f)(1) In this subsection--
          (A) the term ``production order'' means an order to 
        produce any tangible thing under this section; and
          (B) the term ``nondisclosure order'' means an order 
        imposed under subsection (d) of this section.
    (2)(A)(i) A person receiving [a production order] a 
production order or nondisclosure order may challenge the 
legality of that order by filing a petition with the pool 
established by section 1803(e)(1) of this title. [Not less than 
1 year after the date of the issuance of the production order, 
the recipient of a production order may challenge the 
nondisclosure order imposed in connection with such production 
order by filing a petition to modify or set aside such 
nondisclosure order, consistent with the requirements of 
subparagraph (C), with the pool established by section 
1803(e)(1) of this title.]
    (ii) The presiding judge shall immediately assign a 
petition under clause (i) to 1 of the judges serving in the 
pool established by section 1803(e)(1) of this title. Not later 
than 72 hours after the assignment of such petition, the 
assigned judge shall conduct an initial review of the petition. 
If the assigned judge determines that the petition is 
frivolous, the assigned judge shall immediately deny the 
petition and affirm the [production order or nondisclosure] 
order. If the assigned judge determines the petition is not 
frivolous, the assigned judge shall promptly consider the 
petition in accordance with the procedures established under 
section 1803(e)(2) of this title.
    (iii) The assigned judge shall promptly provide a written 
statement for the record of the reasons for any determination 
under this subsection. Upon the request of the Government, any 
order setting aside a nondisclosure order shall be stayed 
pending review pursuant to paragraph (3).
    (B) A judge considering a petition to modify or set aside a 
production order may grant such petition only if the judge 
finds that such order does not meet the requirements of this 
section or is otherwise unlawful. If the judge does not modify 
or set aside the production order, the judge shall immediately 
affirm such order, and order the recipient to comply therewith.
    (C)(i) A judge considering a petition to modify or set 
aside a nondisclosure order may grant such petition only if the 
judge finds that there is no reason to believe that disclosure 
may endanger the national security of the United States, 
interfere with a criminal, counterterrorism, or 
counterintelligence investigation, interfere with diplomatic 
relations, or endanger the life or physical safety of any 
person.
    [(ii) If, upon filing of such a petition, the Attorney 
General, Deputy Attorney General, an Assistant Attorney 
General, or the Director of the Federal Bureau of Investigation 
certifies that disclosure may endanger the national security of 
the United States or interfere with diplomatic relations, such 
certification shall be treated as conclusive, unless the judge 
finds that the certification was made in bad faith.]
    (ii)[(iii)] If the judge denies a petition to modify or set 
aside a nondisclosure order, the recipient of such order shall 
be precluded for a period of 1 year from filing another such 
petition with respect to such nondisclosure order.
    (D) Any production or nondisclosure order not explicitly 
modified or set aside consistent with this subsection shall 
remain in full effect.
    (3) A petition for review of a decision under paragraph (2) 
to affirm, modify, or set aside an order by the Government or 
any person receiving such order shall be made to the court of 
review established under section 1803(b) of this title, which 
shall have jurisdiction to consider such petitions. The court 
of review shall provide for the record a written statement of 
the reasons for its decision and, on petition by the Government 
or any person receiving such order for writ of certiorari, the 
record shall be transmitted under seal to the Supreme Court of 
the United States, which shall have jurisdiction to review such 
decision.
    (4) Judicial proceedings under this subsection shall be 
concluded as expeditiously as possible. The record of 
proceedings, including petitions filed, orders granted, and 
statements of reasons for decision, shall be maintained under 
security measures established by the Chief Justice of the 
United States, in consultation with the Attorney General and 
the Director of National Intelligence.
    (5) All petitions under this subsection shall be filed 
under seal. In any proceedings under this subsection, the court 
shall, upon request of the Government, review ex parte and in 
camera any Government submission, or portions thereof, which 
may include classified information.
    (g) Minimization Procedures.--
          (1) In general.--[Not later than 180 days after March 
        9, 2006, the Attorney General shall adopt specific 
        minimization procedures governing the retention and 
        dissemination by the Federal Bureau of Investigation of 
        any tangible things, or information therein, received 
        by the Federal Bureau of Investigation in response to 
        an order under this subchapter.] At or before the end 
        of the period of time for the production of tangible 
        things under an order approved under this section or at 
        any time after the production of tangible things under 
        an order approved under this section, a judge may 
        assess compliance with the minimization procedures by 
        reviewing the circumstances under which information 
        concerning United States persons was retained or 
        disseminated.
          (2) Defined.--In this section, the term 
        ``minimization procedures'' means--
                  (A) specific procedures that are reasonably 
                designed in light of the purpose and technique 
                of an order for the production of tangible 
                things, to minimize the 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 
                1801(e)(1) of this title, 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.
    (h) Use of Information.--Information acquired from tangible 
things received by the Federal Bureau of Investigation in 
response to an order under this subchapter concerning any 
United States person may be used and disclosed by Federal 
officers and employees without the consent of the United States 
person only in accordance with the minimization procedures 
adopted pursuant to subsection (g) of this section. No 
otherwise privileged information acquired from tangible things 
received by the Federal Bureau of Investigation in accordance 
with the provisions of this subchapter shall lose its 
privileged character. No information acquired from tangible 
things received by the Federal Bureau of Investigation in 
response to an order under this subchapter may be used or 
disclosed by Federal officers or employees except for lawful 
purposes.

           *       *       *       *       *       *       *


                  Subchapter V--Reporting Requirement


SEC. 1871. SEMIANNUAL REPORT OF THE ATTORNEY GENERAL.

    (a) Report.--On a semiannual basis, the Attorney General 
shall submit to the Permanent Select Committee on Intelligence 
of the House of Representatives, the Select Committee on 
Intelligence of the Senate, and the Committees on the Judiciary 
of the House of Representatives and the Senate, in a manner 
consistent with the protection of the national security, a 
report setting forth with respect to the preceding 6-month 
period--
          (1) the aggregate number of persons targeted for 
        orders issued under this chapter, including a breakdown 
        of those targeted for--
                  (A) electronic surveillance under section 
                1805 of this title;
                  (B) physical searches under section 1824 of 
                this title;
                  (C) pen registers under section 1842 of this 
                title;
                  (D) access to records under section 1861 of 
                this title;
                  (E) acquisitions under section 1881b of this 
                title; and
                  (F) acquisitions under section 1881c of this 
                title;
          (2) the number of individuals covered by an order 
        issued pursuant to section 1801(b)(1)(C) of this title;
          (3) the number of times that the Attorney General has 
        authorized that information obtained under this chapter 
        may be used in a criminal proceeding or any information 
        derived therefrom may be used in a criminal proceeding;
          (4) a summary of significant legal interpretations of 
        this chapter involving matters before the Foreign 
        Intelligence Surveillance Court or the Foreign 
        Intelligence Surveillance Court of Review, including 
        interpretations presented in applications or pleadings 
        filed with the Foreign Intelligence Surveillance Court 
        or the Foreign Intelligence Surveillance Court of 
        Review by the Department of Justice; and
          (5) copies of all decisions, orders, or opinions of 
        the Foreign Intelligence Surveillance Court or Foreign 
        Intelligence Surveillance Court of Review that include 
        significant construction or interpretation of the 
        provisions of this chapter.
    (b) Public Report.--The Attorney General shall make 
publicly available the portion of each report under subsection 
(a) relating to paragraphs (1) and (2) of subsection (a).
    (c)[(b)] Frequency.--The first report under this section 
shall be submitted not later than 6 months after December 17, 
2004. Subsequent reports under this section shall be submitted 
semi-annually thereafter.
    (d)[(c)] Submissions to Congress.--The Attorney General 
shall submit to the committees of Congress referred to in 
subsection (a)--
          (1) a copy of any decision, order, or opinion issued 
        by the Foreign Intelligence Surveillance Court or the 
        Foreign Intelligence Surveillance Court of Review that 
        includes significant construction or interpretation of 
        any provision of this chapter, and any pleadings, 
        applications, or memoranda of law associated with such 
        decision, order, or opinion, not later than 45 days 
        after such decision, order, or opinion is issued; and
          (2) a copy of each such decision, order, or opinion, 
        and any pleadings, applications, or memoranda of law 
        associated with such decision, order, or opinion, that 
        was issued during the 5-year period ending on July 10, 
        2008 and not previously submitted in a report under 
        subsection (a).
    (e)[(d)] Protection of National Security.--The Attorney 
General, in consultation with the Director of National 
Intelligence, may authorize redactions of materials described 
in subsection (d) [subsection (c)] that are provided to the 
committees of Congress referred to in subsection (a), if such 
redactions are necessary to protect the national security of 
the United States and are limited to sensitive sources and 
methods information or the identities of targets.
    (f)[(e)] Definitions.--In this section:
          (1) Foreign intelligence surveillance court.--The 
        term ``Foreign Intelligence Surveillance Court'' means 
        the court established under section 1803(a) of this 
        title.
          (2) Foreign intelligence surveillance court of 
        review.--The term ``Foreign Intelligence Surveillance 
        Court of Review'' means the court established under 
        section 1803(b) of this title.

           *       *       *       *       *       *       *


        USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005

                        P.L. 109-177 (H.R. 3199)

SEC. 102. USA PATRIOT ACT SUNSET PROVISIONS.

    (a) In General.--Section 224 of the USA PATRIOT Act is 
repealed.
    (b) Sections 206 and 215 Sunset.--
          (1) In general.--Effective December 31, [2009] 2013, 
        the Foreign Intelligence Surveillance Act of 1978 is 
        amended so that sections 501, 502, and 105(c)(2) read 
        as they read on October 25, 2001.
          (2) Exception.--With respect to any particular 
        foreign intelligence investigation that began before 
        the date on which the provisions referred to in 
        paragraph (1) cease to have effect, or with respect to 
        any particular offense or potential offense that began 
        or occurred before the date on which such provisions 
        cease to have effect, such provisions shall continue in 
        effect.

           *       *       *       *       *       *       *


SEC. 106A. AUDIT ON ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN 
                    INTELLIGENCE PURPOSES.

    (a) Audit.--The Inspector General of the Department of 
Justice shall perform a comprehensive audit of the 
effectiveness and use, including any improper or illegal use, 
of the investigative authority provided to the Federal Bureau 
of Investigation under title V of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1861 et seq.).
    (b) Requirements.--The audit required under subsection (a) 
shall include--
          (1) an examination of each instance in which the 
        Attorney General, any other officer, employee, or agent 
        of the Department of Justice, the Director of the 
        Federal Bureau of Investigation, or a designee of the 
        Director, submitted an application to the Foreign 
        Intelligence Surveillance Court (as such term is 
        defined in section 301(3) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1821(3))) for an 
        order under section 501 of such Act during the calendar 
        years of 2002 through 2011 [2006], including--
                  (A) whether the Federal Bureau of 
                Investigation requested that the Department of 
                Justice submit an application and the request 
                was not submitted to the court (including an 
                examination of the basis for not submitting the 
                application);
                  (B) whether the court granted, modified, or 
                denied the application (including an 
                examination of the basis for any modification 
                or denial);
          (2) the justification for the failure of the Attorney 
        General to issue implementing procedures governing 
        requests for the production of tangible things under 
        such section in a timely fashion, including whether 
        such delay harmed national security;
          (3) whether bureaucratic or procedural impediments to 
        the use of such requests for production prevent the 
        Federal Bureau of Investigation from taking full 
        advantage of the authorities provided under section 501 
        of such Act;
          (4) any noteworthy facts or circumstances relating to 
        orders under such section, including any improper or 
        illegal use of the authority provided under such 
        section; and
          (5) an examination of the effectiveness of such 
        section as an investigative tool, including--
                  (A) the categories of records obtained and 
                the importance of the information acquired to 
                the intelligence activities of the Federal 
                Bureau of Investigation or any other Department 
                or agency of the Federal Government;
                  (B) the manner in which such information is 
                collected, retained, analyzed, and disseminated 
                by the Federal Bureau of Investigation, 
                including any direct access to such information 
                (such as access to ``raw data'') provided to 
                any other Department, agency, or 
                instrumentality of Federal, State, local, or 
                tribal governments or any private sector 
                entity;
                  (C) with respect to each of calendar years 
                2006 through 2011 [calendar year 2006], an 
                examination of the minimization procedures 
                adopted by the Attorney General under section 
                501(g) of such Act and whether such 
                minimization procedures protect the 
                constitutional rights of United States persons;
                  (D) whether, and how often, the Federal 
                Bureau of Investigation utilized information 
                acquired pursuant to an order under section 501 
                of such Act to produce an analytical 
                intelligence product for distribution within 
                the Federal Bureau of Investigation, to the 
                intelligence community (as such term is defined 
                in section 3(4) of the National Security Act of 
                1947 (50 U.S.C. 401a(4))), or to other Federal, 
                State, local, or tribal government Departments, 
                agencies, or instrumentalities; and
                  (E) whether, and how often, the Federal 
                Bureau of Investigation provided such 
                information to law enforcement authorities for 
                use in criminal proceedings.
    (c) Submission Dates.--
          (1) Prior years.--Not later than one year after the 
        date of the enactment of this Act, or upon completion 
        of the audit under this section for calendar years 
        2002, 2003, and 2004, whichever is earlier, the 
        Inspector General of the Department of Justice shall 
        submit to the Committee on the Judiciary and the 
        Permanent Select Committee on Intelligence of the House 
        of Representatives and the Committee on the Judiciary 
        and the Select Committee on Intelligence of the Senate 
        a report containing the results of the audit conducted 
        under this section for calendar years 2002, 2003, and 
        2004.
          (2) Calendar years 2005 and 2006.--Not later than 
        December 31, 2007, or upon completion of the audit 
        under this section for calendar years 2005 and 2006, 
        whichever is earlier, the Inspector General of the 
        Department of Justice shall submit to the Committee on 
        the Judiciary and the Permanent Select Committee on 
        Intelligence of the House of Representatives and the 
        Committee on the Judiciary and the Select Committee on 
        Intelligence of the Senate a report containing the 
        results of the audit conducted under this section for 
        calendar years 2005 and 2006.
          (3) Calendar years 2007, 2008, and 2009.--Not later 
        than June 30, 2011, the Inspector General of the 
        Department of Justice shall submit to the Committee on 
        the Judiciary and the Permanent Select Committee on 
        Intelligence of the House of Representatives and the 
        Committee on the Judiciary and the Select Committee on 
        Intelligence of the Senate a report containing the 
        results of the audit conducted under this section for 
        calendar years 2007, 2008, and 2009.
          (4) Calendar years 2010 and 2011.--Not later than 
        December 31, 2012, the Inspector General of the 
        Department of Justice shall submit to the Committee on 
        the Judiciary and the Permanent Select Committee on 
        Intelligence of the House of Representatives and the 
        Committee on the Judiciary and the Select Committee on 
        Intelligence of the Senate a report containing the 
        results of the audit conducted under this section for 
        calendar years 2010 and 2011.
    (d) Prior Notice to Attorney General and Director of 
National Intelligence; Comments.--
          (1) Notice.--Not less than 30 days before the 
        submission of a report under subsection (c)(1), (c)(2), 
        (c)(3), or (c)(4) [or (c)(2)], the Inspector General of 
        the Department of Justice shall provide such report to 
        the Attorney General and the Director of National 
        Intelligence.
          (2) Comments.--The Attorney General or the Director 
        of National Intelligence may provide comments to be 
        included in the reports submitted under subsections 
        (c)(1), (c)(2), (c)(3), or (c)(4) [and (c)(2)] as the 
        Attorney General or the Director of National 
        Intelligence may consider necessary.
    (e) Unclassified Form.--The reports submitted under 
subsections (c)(1), (c)(2), (c)(3), or (c)(4) [and (c)(2)] and 
any comments included under subsection (d)(2) shall be in 
unclassified form, but may include a classified annex.

           *       *       *       *       *       *       *


SEC. 118. REPORTS ON NATIONAL SECURITY LETTERS.

    (c) Report on Requests for National Security Letters.--
          (1) In general.--In April of each year, the Attorney 
        General shall submit to Congress an aggregate report 
        setting forth with respect to the preceding year the 
        total number of requests made by the Department of 
        Justice for information [concerning different United 
        States persons] under--
                  (A) section 2709 of title 18, United States 
                Code (to access certain communication service 
                provider records)[, excluding the number of 
                requests for subscriber information];
                  (B) section 1114 of the Right to Financial 
                Privacy Act (12 U.S.C. 3414) (to obtain 
                financial institution customer records);
                  (C) section 802 of the National Security Act 
                of 1947 (50 U.S.C. 436) (to obtain financial 
                information, records, and consumer reports);
                  (D) section 626 of the Fair Credit Reporting 
                Act (15 U.S.C. 1681u) (to obtain certain 
                financial information and consumer reports); 
                and
                  (E) section 627 of the Fair Credit Reporting 
                Act (15 U.S.C. 1681v) (to obtain credit agency 
                consumer records for counterterrorism 
                investigations).
          (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).
          (3)[(2)] Unclassified form.--The report under this 
        section shall be submitted in unclassified form.

           *       *       *       *       *       *       *


SEC. 119. AUDIT OF USE OF NATIONAL SECURITY LETTERS.

    (a) Audit.--The Inspector General of the Department of 
Justice shall perform an audit of the effectiveness and use, 
including any improper or illegal use, of national security 
letters issued by the Department of Justice.
    (b) Requirements.--The audit required under subsection (a) 
shall include--
          (1) an examination of the use of national security 
        letters by the Department of Justice during calendar 
        years 2003 through 2011 [2006];
          (2) a description of any noteworthy facts or 
        circumstances relating to such use, including any 
        improper or illegal use of such authority; and
          (3) an examination of the effectiveness of national 
        security letters as an investigative tool, including--
                  (A) the importance of the information 
                acquired by the Department of Justice to the 
                intelligence activities of the Department of 
                Justice or to any other department or agency of 
                the Federal Government;
                  (B) the manner in which such information is 
                collected, retained, analyzed, and disseminated 
                by the Department of Justice, including any 
                direct access to such information (such as 
                access to ``raw data'') provided to any other 
                department, agency, or instrumentality of 
                Federal, State, local, or tribal governments or 
                any private sector entity;
                  (C) whether, and how often, the Department of 
                Justice utilized such information to produce an 
                analytical intelligence product for 
                distribution within the Department of Justice, 
                to the intelligence community (as such term is 
                defined in section 3(4) of the National 
                Security Act of 1947 (50 U.S.C. 401a(4))), or 
                to other Federal, State, local, or tribal 
                government departments, agencies, or 
                instrumentalities;
                  (D) whether, and how often, the Department of 
                Justice provided such information to law 
                enforcement authorities for use in criminal 
                proceedings;
                  (E) with respect to national security letters 
                issued following the date of the enactment of 
                this Act, an examination of the number of 
                occasions in which the Department of Justice, 
                or an officer or employee of the Department of 
                Justice, issued a national security letter 
                without the certification necessary to require 
                the recipient of such letter to comply with the 
                nondisclosure and confidentiality requirements 
                potentially applicable under law; and
                  (F) the types of electronic communications 
                and transactional information obtained through 
                requests for information under section 2709 of 
                title 18, United States Code, including the 
                types of dialing, routing, addressing, or 
                signaling information obtained, and the 
                procedures the Department of Justice uses if 
                content information is obtained through the use 
                of such authority.
    (c) Submission Dates.--
          (1) Prior years.--Not later than one year after the 
        date of the enactment of this Act, or upon completion 
        of the audit under this section for calendar years 2003 
        and 2004, whichever is earlier, the Inspector General 
        of the Department of Justice shall submit to the 
        Committee on the Judiciary and the Permanent Select 
        Committee on Intelligence of the House of 
        Representatives and the Committee on the Judiciary and 
        the Select Committee on Intelligence of the Senate a 
        report containing the results of the audit conducted 
        under this subsection for calendar years 2003 and 2004.
          (2) Calendar years 2005 and 2006.--Not later than 
        December 31, 2007, or upon completion of the audit 
        under this subsection for calendar years 2005 and 2006, 
        whichever is earlier, the Inspector General of the 
        Department of Justice shall submit to the Committee on 
        the Judiciary and the Permanent Select Committee on 
        Intelligence of the House of Representatives and the 
        Committee on the Judiciary and the Select Committee on 
        Intelligence of the Senate a report containing the 
        results of the audit conducted under this subsection 
        for calendar years 2005 and 2006.
          (3) Calendar years 2007, 2008, and 2009.--Not later 
        than June 30, 2011, the Inspector General of the 
        Department of Justice shall submit to the Committee on 
        the Judiciary and the Permanent Select Committee on 
        Intelligence of the House of Representatives and the 
        Committee on the Judiciary and the Select Committee on 
        Intelligence of the Senate a report containing the 
        results of the audit conducted under this section for 
        calendar years 2007, 2008, and 2009.
          (4) Calendar years 2010 and 2011.--Not later than 
        December 31, 2012, the Inspector General of the 
        Department of Justice shall submit to the Committee on 
        the Judiciary and the Permanent Select Committee on 
        Intelligence of the House of Representatives and the 
        Committee on the Judiciary and the Select Committee on 
        Intelligence of the Senate a report containing the 
        results of the audit conducted under this section for 
        calendar years 2010 and 2011.
    (d) Prior Notice to Attorney General and Director of 
National Intelligence; Comments.--
          (1) Notice.--Not less than 30 days before the 
        submission of a report under subsection (c)(1), (c)(2), 
        (c)(3), or (c)(4) [or (c)(2)], the Inspector General of 
        the Department of Justice shall provide such report to 
        the Attorney General and the Director of National 
        Intelligence.
          (2) Comments.--The Attorney General or the Director 
        of National Intelligence may provide comments to be 
        included in the reports submitted under subsection 
        (c)(1), (c)(2), (c)(3), or (c)(4) [or (c)(2)] as the 
        Attorney General or the Director of National 
        Intelligence may consider necessary.
    (e) Unclassified Form.--The reports submitted under 
subsection (c)(1), (c)(2), (c)(3), or (c)(4) [or (c)(2)] and 
any comments included under subsection (d)(2) shall be in 
unclassified form, but may include a classified annex.
    (f) Minimization Procedures Feasibility.--Not later than 
February 1, 2007, or upon completion of review of the report 
submitted under subsection (c)(1), whichever is earlier, the 
Attorney General and the Director of National Intelligence 
shall jointly submit to the Committee on the Judiciary and the 
Permanent Select Committee on Intelligence of the House of 
Representatives and the Committee on the Judiciary and the 
Select Committee on Intelligence of the Senate a report on the 
feasibility of applying minimization procedures in the context 
of national security letters to ensure the protection of the 
constitutional rights of United States persons.
    (g) National Security Letter Defined.--In this section, the 
term ``national security letter'' means a request for 
information under one of the following provisions of law:
          (1) Section 2709(a) of title 18, United States Code 
        (to access certain communication service provider 
        records).
          (2) Section 1114(a)(5)(A) of the Right to Financial 
        Privacy Act (12 U.S.C. 3414(a)(5)(A)) (to obtain 
        financial institution customer records).
          (3) Section 802 of the National Security Act of 1947 
        (50 U.S.C. 436) (to obtain financial information, 
        records, and consumer reports).
          (4) Section 626 of the Fair Credit Reporting Act (15 
        U.S.C. 1681u) (to obtain certain financial information 
        and consumer reports).
          (5) Section 627 of the Fair Credit Reporting Act (15 
        U.S.C. 1681v) (to obtain credit agency consumer records 
        for counterterrorism investigations).

           *       *       *       *       *       *       *


        INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004


                      PL 108-458 (118 Stat. 3742)

                    TITLE VI--TERRORISM PREVENTION 


     Subtitle A--Individual Terrorists as Agents of Foreign Powers


SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.

           *       *       *       *       *       *       *


    [(b) Sunset.--The amendment made by subsection (a) shall be 
subject to the sunset provision in section 224 of Public Law 
107-56 (115 Stat. 295), including the exception provided in 
subsection (b) of such section 224.]
    (b) Sunset.--
          (1) Repeal.--Subparagraph (C) of section 101(b)(1) of 
        the Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1801(b)(1)), as added by subsection (a), is 
        repealed effective December 31, 2013.
          (2) Transition provision.--Notwithstanding paragraph 
        (1), subparagraph (C) of section 101(b)(1) of the 
        Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1801(b)(1)) shall continue to apply on and after 
        December 31, 2013, with respect to any particular 
        foreign intelligence investigation or with respect to 
        any particular offense or particular offense that began 
        or occurred before December 31, 2013.

           *       *       *       *       *       *       *


 New Provisions Under USA PATRIOT Act Sunset Extension Act of 2009 (S. 
                                 1692)

SEC. 2. SUNSETS.

           *       *       *       *       *       *       *


    (c) National Security Letters.--
          (1) Repeal.--Effective on December 31, 2013.--
                  (A) section 2709 of title 18, United States 
                Code, is amended to read as such provision read 
                on October 25, 2001;
                  (B) section 1114(a)(5) of the Right to 
                Financial Privacy Act of 1978 (12 U.S.C. 
                3414(a)(5)) is amended to read as such 
                provision read on October 25, 2001;
                  (C) subsections (a) and (b) of section 626 of 
                the Fair Credit Reporting Act (15 U.S.C. 1681u) 
                are amended to read as subsections (a) and (b), 
                respectively, of section 624 of such Act read 
                on October 25, 2001;
                  (D) section 627 of the Fair Credit Reporting 
                Act (15 U.S.C. 1681v) is repealed; and
                  (E) section 802 of the National Security Act 
                of 1947 (50 U.S.C. 436) is amended to read as 
                such provision read on October 25, 2001.
          (2) Transition provision.--Notwithstanding paragraph 
        (1), the provisions of law referred to in paragraph 
        (1), as in effect on December 30, 2013, shall continue 
        to apply on and after December 31, 2013, with respect 
        to any particular foreign intelligence investigation or 
        with respect to any particular offense or potential 
        offense that began or occurred before December 31, 
        2013.
          (3) Technical and conforming amendments.--Effective 
        December 31, 2013--
                  (A) section 3511 of title 18, United States 
                Code, is amended--
                          (i) in subsections (a), (c), and (d), 
                        by striking ``or 627(a)'' each place it 
                        appears; and
                          (ii) in subsection (b)(1)(A), as 
                        amended by section 6(b) of this Act, by 
                        striking ``section 626 or 627 of the 
                        Fair Credit Reporting Act (15 U.S.C. 
                        1681u and 1681v)'' and inserting 
                        ``section 626 of the Fair Credit 
                        Reporting Act (15 U.S.C. 1681u)'';
                  (B) section 118(c) of the USA PATRIOT 
                Improvement and Reauthorization Act of 2005 (18 
                U.S.C. 3511 note) is amended--
                          (i) in subparagraph (C), by adding 
                        ``and'' at the end;
                          (ii) in subparagraph (D), by striking 
                        ``; and'' and inserting a period; and
                          (iii) by striking subparagraph (E); 
                        and
                  (C) the table of sections for the Fair Credit 
                Reporting Act (15 U.S.C. 1681 et seq.) is 
                amended by striking the item relating to 
                section 627.

           *       *       *       *       *       *       *


SEC. 10. AUDITS.

           *       *       *       *       *       *       *


    (c) Pen Registers and Trap and Trace Devices.--
          (1) Audits.--The Inspector General of the Department 
        of Justice shall perform comprehensive audits of the 
        effectiveness and use, including any improper or 
        illegal use, of pen registers and trap and trace 
        devices under title IV of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1841 et seq.) 
        during the period beginning on January 1, 2007 and 
        ending on December 31, 2011.
          (2) Requirements.--The audits required under 
        paragraph (1) shall include--
                  (A) an examination of the use of pen 
                registers and trap and trace devices under 
                title IV of the Foreign Intelligence 
                Surveillance Act of 1978 for calendar years 
                2007 through 2011;
                  (B) an examination of the installation and 
                use of a pen register or trap and trace device 
                on emergency bases under section 403 of the 
                Foreign Intelligence Surveillance Act of 1978 
                (50 U.S.C. 1843);
                  (C) any noteworthy facts or circumstances 
                relating to the use of a pen register or trap 
                and trace device under title IV of the Foreign 
                Intelligence Surveillance Act of 1978, 
                including any improper or illegal use of the 
                authority provided under that title; and
                  (D) an examination of the effectiveness of 
                the authority under title IV of the Foreign 
                Intelligence Surveillance Act of 1978 as an 
                investigative tool, including--
                          (i) the importance of the information 
                        acquired to the intelligence activities 
                        of the Federal Bureau of Investigation 
                        or any other department or agency of 
                        the Federal Government;
                          (ii) the manner in which the 
                        information is collected, retained, 
                        analyzed, and disseminated by the 
                        Federal Bureau of Investigation, 
                        including any direct access to the 
                        information provided to any other 
                        department, agency, or instrumentality 
                        of Federal, State, local, or tribal 
                        governments or any private sector 
                        entity;
                          (iii) with respect to calendar years 
                        2010 and 2011, an examination of the 
                        minimization procedures used in 
                        relation to pen registers and trap and 
                        trace devices under title IV of the 
                        Foreign Intelligence Surveillance Act 
                        of 1978 and whether the minimization 
                        procedures protect the constitutional 
                        rights of United States persons (as 
                        defined in section 101 of the Foreign 
                        Intelligence Surveillance Act of 1978 
                        (50 U.S.C. 1801));
                          (iv) whether, and how often, the 
                        Federal Bureau of Investigation used 
                        information acquired under a pen 
                        register or trap and trace device under 
                        title IV of the Foreign Intelligence 
                        Surveillance Act of 1978 to produce an 
                        analytical intelligence product for 
                        distribution within the Federal Bureau 
                        of Investigation, to the intelligence 
                        community (as defined in section 3(4) 
                        of the National Security Act of 1947 
                        (50 U.S.C. 401a(4))), or to other 
                        Federal, State, local, or tribal 
                        government departments, agencies, or 
                        instrumentalities; and
                          (v) whether, and how often, the 
                        Federal Bureau of Investigation 
                        provided information acquired under a 
                        pen register or trap and trace device 
                        under title IV of the Foreign 
                        Intelligence Surveillance Act of 1978 
                        to law enforcement authorities for use 
                        in criminal proceedings.
          (3) Submission dates.--
                  (A) Prior years.--Not later than June 30, 
                2011, the Inspector General of the Department 
                of Justice shall submit to the Committee on the 
                Judiciary and the Select Committee on 
                Intelligence of the Senate and the Committee on 
                the Judiciary and the Permanent Select 
                Committee on Intelligence of the House of 
                Representatives a report containing the results 
                of the audit conducted under this section for 
                calendar years 2007 through 2009.
                  (B) Calendar years 2010 and 2011.--Not later 
                than December 21, 2012, the Inspector General 
                of the Department of Justice shall submit to 
                the Committee on the Judiciary and the Select 
                Committee on Intelligence of the Senate and the 
                Committee on the Judiciary and the Permanent 
                Select Committee on Intelligence of the House 
                of Representatives a report containing the 
                results of the audit conducted under this 
                section for calendar years 2010 and 2011.
          (4) Prior notice to attorney general and director of 
        national intelligence; comments.--
                  (A) Notice.--Not less than 30 days before the 
                submission of a report under subparagraph (A) 
                or (B) of paragraph (3), the Inspector General 
                of the Department of Justice shall provide the 
                report to the Attorney General and the Director 
                of National Intelligence.
                  (B) Comments.--The Attorney General or the 
                Director of National Intelligence may provide 
                such comments to be included in a report 
                submitted under subparagraph (A) or (B) of 
                paragraph (3) as the Attorney General or the 
                Director of National Intelligence may consider 
                necessary.
          (5) Unclassified form.--A report submitted under 
        subparagraph (A) or (B) of paragraph (3) and any 
        comments included under paragraph (4)(B) shall be in 
        unclassified form, but may include a classified annex.

           *       *       *       *       *       *       *


SEC. 12. MINIMIZATION.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the Attorney General shall--
          (1) establish minimization procedures governing the 
        acquisition, retention, and dissemination by the 
        Federal Bureau of Investigation of any records received 
        by the Federal Bureau of Investigation in response to a 
        national security letter; and
          (2) submit to the Committee on the Judiciary and the 
        Select Committee on Intelligence of the Senate and the 
        Committee on the Judiciary and the Permanent Select 
        Committee on Intelligence of the House of 
        Representatives a copy of the minimization procedures 
        established under paragraph (1).
    (b) Definitions.--In this section--
          (1) the term ``minimization procedures'' means--
                  (A) specific procedures that are reasonably 
                designed in light of the purpose and technique 
                of a national security letter, to minimize the 
                acquisition and retention, and prohibit the 
                dissemination, of nonpublicly available 
                information concerning unconsenting United 
                States persons (as defined in section 101 of 
                the Foreign Intelligence Surveillance Act of 
                1978 (50 U.S.C. 1801)) consistent with the need 
                of the United States to obtain, produce, and 
                disseminate foreign intelligence information;
                  (B) procedures that require that nonpublicly 
                available information, which is not foreign 
                intelligence information (as defined in section 
                101(e)(1) of the Foreign Intelligence 
                Surveillance Act of 1978 (50 U.S.C. 
                1801(e)(1))) shall not be disseminated in a 
                manner that identifies any United States 
                person, without the consent of the United 
                States person, unless the identity of the 
                United States person is necessary to understand 
                foreign intelligence information or assess its 
                importance; and
                  (C) notwithstanding subparagraphs (A) and 
                (B), procedures that allow for the retention 
                and dissemination of information that is 
                evidence of a crime which has been, is being, 
                or is about to be committed and that is to be 
                retained or disseminated for law enforcement 
                purposes; and
          (2) the term ``national security letter'' means a 
        national security letter issued under section 2709 of 
        title 18, United States Code, section 1114(a)(5) of the 
        Right to Financial Privacy Act of 1978 (12 U.S.C. 
        3414(5)), subsection (a) or (b) of section 626 of the 
        Fair Credit Reporting Act (15 U.S.C. 1681u), or section 
        627 of the Fair Credit Reporting Act (15 U.S.C. 1681v).

                                  
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