[Senate Report 112-13]
[From the U.S. Government Publishing Office]
Calendar No. 18
112th Congress Report
SENATE
1st Session 112-13
======================================================================
THE USA PATRIOT ACT SUNSET EXTENSION ACT OF 2011
_______
April 5, 2011.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 193]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 193), 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 amendments, and
recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Background and Purpose of The USA PATRIOT Act Sunset Extension Act
of 2011..........................................................2
II. History of the Bill and Committee Consideration.................20
III. Section-by-Section Summary of the Bill..........................22
IV. Congressional Budget Office Cost Estimate.......................27
V. Regulatory Impact Evaluation....................................31
VI. Conclusion......................................................31
VII. Minority Views..................................................32
VIII.Changes to Existing Law Made by the Bill, as Reported...........52
I. Background and Purpose of the USA PATRIOT Act Sunset Extension Act
of 2011
A. INTRODUCTION
In the immediate aftermath of the September 11, 2001
attacks, Congress drafted legislation to provide law
enforcement with new or expanded tools to investigate and
prosecute terrorists. The Senate passed a bill, the Uniting and
Strengthening America Act on October 11, 2001. The House passed
a bill on October 12, 2001, titled the Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act. The
bills were reconciled, producing the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, which was
signed into law on October 26, 2001, as P.L. 107-056.
The USA PATRIOT Act triggered significant debate over the
scope and targets of its surveillance authorities and the level
of judicial review to be applied to the new law. Then-Majority
Leader of the House, Richard Armey, and Chairman of the Senate
Judiciary Committee, Patrick Leahy, insisted that a four-year
sunset apply to 16 authorities. Modifications to National
Security Letter (NSL) authorities were enacted without
significant controversy in 2001, but subsequent misuse and
abuse of NSLs led to intensive public scrutiny and
congressional oversight.
The four-year sunsets in the 2001 law would have resulted
in the expiration of 16 provisions on December 31, 2005. In
enacting a reauthorization law, Congress determined that 14 of
the 16 could be made permanent. However, a great deal of
controversy continued to surround two authorities: requests for
business records (section 215 of the 2001 law), and the
``roving'' intelligence wiretap authority (section 206 of the
2001 law). In addition, NSLs were closely examined as their use
expanded exponentially.
Following intensive debate of the USA PATRIOT Act
Improvement and Reauthorization Act of 2005 (``2005 USA PATRIOT
Act Reauthorization'') conference report, civil liberties
concerns led to a bipartisan Senate filibuster of the
conference report in December 2005. Congress passed a short
extension, finally enacting the conference report and an
improvements bill in March 2006 (P.L. 109-177 and P.L. 109-
178). Sections 206 and 215 of the 2001 law were subject to a
new sunset of December 31, 2009. A third sunset on the same
date was imposed on the ``lone wolf'' surveillance authority,
first enacted in 2004 as part of the Intelligence Reform and
Terrorism Prevention Act of 2004 (P.L. 108-458). The 2005 USA
PATRIOT Act Reauthorization required that audits of section 215
orders and NSLs be conducted by the Inspector General of the
Department of Justice. The Inspector General found a small
number of instances of improper use of section 215 orders that
resulted in the over-collection of information by the FBI. The
NSL audits, published in 2007 and 2008, documented wide misuse
and some abuse of the NSL authority by the FBI, including
improper issuance of so-called ``exigent letters.''
During the 111th Congress, Chairman Leahy introduced the
USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692), which
extended the sunsets of the three expiring PATRIOT Act
provisions from December 31, 2009 to December 31, 2013. The
bill also included a number of improvements and reforms that
enhanced judicial and congressional oversight, and strengthened
important privacy and civil liberties protections. Although S.
1692 was reported out of the Judiciary Committee with
bipartisan support,\1\ the full Senate did not take further
action on the legislation. Instead, two successive short-term
extensions of the expiring PATRIOT Act provisions were enacted,
ultimately extending the sunset date to February 28, 2011.
Another short-term extension enacted in the 112th Congress
extended that sunset to May 27, 2011.
---------------------------------------------------------------------------
\1\Among the Republican members of the Committee, both Senator Kyl
and Senator Cornyn supported S. 1692 and voted to report the bill
favorably to the full Senate.
---------------------------------------------------------------------------
The USA PATRIOT Act Sunset Extension Act of 2011 (S. 193)
is virtually identical to the bill reported by Chairman Leahy
in the 111th Congress (S. 1692). As was the case with S. 1692,
the USA PATRIOT Act Sunset Extension Act of 2011 (S. 193) is
the product of extensive bipartisan negotiations with the
Department of Justice and the intelligence community, and
received bipartisan support in Committee.\2\
---------------------------------------------------------------------------
\2\During consideration of the bill in the 112th Congress, among
the Republican members of the Committee, Senator Lee supported S. 193
and voted to report the bill favorably to the full Senate.
---------------------------------------------------------------------------
B. PRIOR CONSIDERATION OF USA PATRIOT ACT AUTHORITIES
During the 109th Congress, a number of the expiring
provisions of the 2001 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 2001 USA PATRIOT Act, which authorized ``roving'' wiretaps
and orders for production of business records under the Foreign
Intelligence Surveillance Act of 1978 (``FISA''). The ``lone
wolf'' surveillance authority, which had been included in FISA
through the Intelligence Reform and Terrorist Prevention Act of
2004, was also viewed as controversial by some. Accordingly,
the 2005 USA PATRIOT Act Reauthorization included a new sunset
of December 31, 2009, for these three provisions. The 2005 USA
PATRIOT Act Reauthorization also mandated that the Department
of Justice, Office of Inspector General complete comprehensive
audits on the Government's use of NSLs and requests for
production of business records and other tangible things under
section 215 of the 2001 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 (FBI), and found numerous instances of over-
collection of information. In reports on the use of NSLs, the
Inspector General cited faulty record keeping, poor tracking
systems, and both misuse and abuse of the NSL authority. For
example, a March 2007 report by the Department of Justice
Inspector General ``concluded that the FBI engaged in serious
misuse of NSL authority,'' including improper authorization of
NSLs, improper requests under the pertinent national security
letter statutes, and unauthorized collections. (Report of the
U.S. Department of Justice, Office of the Inspector General,
``A Review of the Federal Bureau of Investigation's Use of
National Security Letters, March 2007,'' found at http://
www.justice.gov/oig/special/s0703b/final.pdf.)
Most troubling, the report also identified more than 700
instances in which the FBI improperly obtained telephone
records by issuing ``exigent letters.'' (Id. p. 86-97) The
Department of Justice Inspector General also found instances in
which improper use of section 215 orders for business records
or other tangible things by the FBI resulted in over-collection
of information, or where the FBI issued NSLs to obtain
information for which the Foreign Intelligence Surveillance
Court (``FISA Court'') had previously refused to authorize a
section 215 order, based on First Amendment concerns. (Report
of the U.S. Department of Justice, Office of the Inspector
General, ``A Review of the FBI's Use of Section 215 Orders for
Business Records in 2006,'' March 2008, at pp. 59-74; found at
http://www.justice.gov/oig/special/s0803a/final.pdf.)
Consistent with the 2005 USA PATRIOT Act Reauthorization,
S. 193, the USA PATRIOT Act Sunset Act of 2011, mandates
further audits to ensure that these surveillance authorities
are implemented properly. It also adds a new set of audits to
review the use of pen register and trap and trace devices
authorized under FISA.
Early in the 111th Congress, with a December 31, 2009,
sunset pending, Chairman Leahy wrote to Attorney General Eric
Holder seeking the administration's views on reauthorization of
the expiring authorities. (Letter from Chairman Leahy to
Attorney General Eric Holder, dated March 9, 2009.) The
Assistant Attorney General for Legislative Affairs, Ronald
Weich, responded to Chairman Leahy on September 14, 2009,
stating that the Department of Justice would prefer to have the
authorities extended, and that the Department of Justice would
be willing to work with the Committee to consider additional
privacy protections for law abiding Americans. (Letter from
Assistant Attorney General for Legislative Affairs, Ronald
Weich, to Chairman Leahy, dated September, 14, 2009.)
The Committee held a hearing titled, ``Reauthorizing the
USA PATRIOT Act: Ensuring Liberty and Security,'' on September
23, 2009. (See Hearing of the Senate Committee on the
Judiciary, ``Reauthorizing the USA PATRIOT Act: Ensuring
Liberty and Security,'' September 23, 2009, S. Hrg. 111-333,
Serial No. J-111-49, available at http://www.gpo.gov/fdsys/pkg/
CHRG-111shrg55610/pdf/CHRG-111shrg55610.pdf.) During the first
panel, testimony was heard 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 were then set to expire on December 31, 2009, are the
FISA ``roving'' wiretap authority, the ``lone wolf''
surveillance authority, and the provision authorizing FISA
orders for business records and other tangible things. (Id. at
107-112.)
Mr. Fine 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 2005 USA PATRIOT Act Reauthorization. (Id.
at 81-96.) As noted above, the audits found significant
problems regarding the use of NSLs and exigent letters.
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. The full hearing record is available at
http://www.gpo.gov/fdsys/pkg/CHRG-111shrg55610/pdf/CHRG-
111shrg55610.pdf.)
In the 111th Congress, the Committee reported the USA
PATRIOT Act Sunset Extension Act of 2009, S. 1692. That bill,
reported on October 13, 2009, received a bipartisan vote in the
Committee, with Senators Kyl (R-AZ) and Cornyn (R-TX) voting in
favor of the bill, along with Chairman Leahy (D-VT) and
Senators Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY), Cardin
(D-MD), Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-DE),
and Franken (D-MN). After the bill was reported, Senators Kyl
and Sessions (R-AL) joined with Chairman Leahy, Senator
Feinstein, the Department of Justice, and intelligence agencies
to continue negotiations over the legislative text. In November
2009, the revised bill text was finalized. The bill was
endorsed by the Attorney General in a letter to Chairman Leahy
dated November 9, 2009. The bill was again endorsed by the
Attorney General and the Director of National Intelligence in a
letter to the Leaders of the House of Representatives and the
Senate dated February 19, 2010.
Instead of taking further action on S. 1692 in the 111th
Congress, two short-term extensions of the expiring provisions
of the USA PATRIOT Act were enacted, ultimately extending the
sunset date to February 28, 2011.
On March 17, 2010, following enactment of the February 28,
2011 sunset extension, Chairman Leahy wrote to the Attorney
General, asking him to implement a number of the provisions of
the negotiated package based on S. 1692, which the
administration had strongly endorsed. Chairman Leahy noted in
his letter that the majority of provisions in the package did
not require legislative action, but could be implemented as a
matter of administrative policy and practice. The Attorney
General responded to Chairman Leahy's letter on December 9,
2010. The Attorney General agreed to implement a significant
number of the provisions, and stated: ``[W]e have determined
that many of the privacy and civil liberties provisions of S.
1692 can be implemented without legislation.'' He continued:
``We believe these measures will enhance standards, oversight,
and accountability, especially with respect to how information
about U.S. persons is retained and disseminated, without
sacrificing the operational effectiveness and flexibility
needed to protect our citizens from terrorism and facilitate
the collection of vital foreign intelligence and
counterintelligence information.'' (Letter from Attorney
General Eric Holder to Chairman Leahy dated December 9, 2010.)
In his response to Chairman Leahy's request, the Attorney
General specifically outlined a number of provisions that the
Department of Justice could implement administratively without
impacting operational ability to protect Americans from
terrorism. For example, regarding section 215 orders for
tangible things, the Attorney General agreed to apply new
requirements for acquisition of library and bookseller records.
Specifically, when library or bookseller records are sought
using a section 215 order, the Government must provide 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 a foreign power subject to the
investigation.
With regard to NSLs, to facilitate better auditing and
accountability, the Department of Justice adopted a policy
requiring the FBI to retain a written statement of facts
showing that the information sought through an NSL is relevant
to an authorized investigation. In addition, the Department of
Justice adopted procedures to provide notification to
recipients of NSLs of their opportunity to contest any
nondisclosure requirement attached to the NSL. The Department
of Justice further agreed to ensure that NSL recipients who
challenge nondisclosure orders are notified by the FBI when
compliance with such nondisclosure orders is no longer
required.
The bill in the 111th Congress (S. 1692) called upon the
Department of Justice to adopt procedures for the collection,
use, and storage of information derived from NSLs. Those
procedures were approved by Attorney General Holder on October
1, 2010. Finally, the Attorney General agreed to work with
Congress to determine ways to make additional information
regarding the use of FISA authorities publicly available.
Chairman Leahy also wrote to Justice Department Inspector
General Glenn Fine on March 16, 2010, requesting that the
Office of the Inspector General fulfill several auditing and
reporting requirements included in the legislation. On June 15,
2010, Inspector General Fine responded, indicating that his
office would conduct many of the audits called for in the
legislation. (Letter from Department of Justice Inspector
General Glenn Fine to Chairman Leahy dated June 15, 2010.)
C. CONSIDERATION OF USA PATRIOT ACT AUTHORITIES IN THE 112TH CONGRESS
Early in the 112th Congress, facing a sunset date of
February 28, 2011, Congress enacted a short-term extension of
the three expiring provisions of the USA PATRIOT Act to May 27,
2011.
The USA PATRIOT Act Sunset Extension Act of 2011, S. 193 as
introduced, was virtually identical to the version of S. 1692
that was negotiated in the 111th Congress with Senators Kyl (R-
AZ), Sessions (R-AL), Leahy (D-VT), and Feinstein (D-CA), along
with the Department of Justice, and intelligence agencies. The
only differences between the negotiated package of November
2009 and S. 193 as introduced are updates to the dates by which
Inspectors General must submit audits to Congress. In addition,
the new bill contains a modification to reflect that procedures
for the collection, use and storage of information derived from
NSLs were established by the Department of Justice in October
2010. Rather than calling for the establishment of such
procedures, the new bill requires the Attorney General to
periodically review the procedures, taking the privacy rights
and civil liberties of Americans into consideration.
With those slight modifications, the text of S. 193 as
introduced is substantively identical to the package that the
Department of Justice and Office of the Director of National
Intelligence (DNI) have repeatedly endorsed and have stated
will pose no operational concerns for law enforcement or
intelligence collection. Indeed, in light of the commitments by
the Attorney General and the Inspector General for the
Department of Justice to implement administratively a number of
the provisions of S. 1692 (111th Congress), S. 193 simply
codifies much of what the administration is already doing. The
administration confirmed in a February 28, 2011, briefing for
Senators that the prior endorsement letters of November 9,
2009, and February 19, 2010, remain in force.
On February 8, 2011, the Chairman and Vice Chairman of the
Senate Select Committee on Intelligence wrote to each Member of
the Senate that the Attorney General and the Director of
National Intelligence had provided a classified report for
review by all Senators in connection with the sunset of FISA
authorities. The letter invited each Senator to read the
classified report at the Senate Intelligence Committee. The
letter also advised that the Attorney General and the DNI had
offered to make Justice Department and Intelligence Community
personnel available to meet with any Member who has questions.
On February 14, 2011, the Director of the FBI, Robert
Mueller; the Director of National Intelligence, James Clapper;
and the Director of the National Security Agency, General Keith
Alexander, briefed members of the Senate Judiciary and
Intelligence Committees. A classified briefing was held on
February 28, 2011, for the same group of Senators, with the
Assistant Attorney General for National Security, David Kris;
General Counsel of the FBI, Valerie Caproni; General Counsel to
the Director of National Intelligence, Robert Litt; and General
Counsel of the National Security Agency, Matthew Olsen. The
briefers reiterated that S. 193 poses no operational concerns
and is the product of extensive negotiations between the
Executive Branch and Congress in 2009.
On March 1, 2011, in testimony before the House
Appropriations Subcommittee on Commerce, Justice, and Science,
Attorney General Holder stated his support for S. 193, saying
that the bill strikes ``a good balance,'' in that it extends
authorities subject to sunset, ``but also dials in civil
liberties protections.'' In addition, in hearing testimony
before the House Judiciary Committee, Subcommittee on Crime,
Terrorism, and Homeland Security, on March 9, 2011, the Acting
Assistant Attorney General for National Security, Todd Hinnen,
said: ``The administration had reached the point where it was
supporting a very similar bill to [S. 193] at the end of the
last Congress . . . [W]e are prepared to support a bill that's
similar to the one that was at the close of the last
Congress.'' Mr. Hinnen also confirmed that the FISA ``lone
wolf'' provision has still never been used by the Government.
In the same hearing, the General Counsel to the Director of
National Intelligence, Robert Litt, said: ``I think the
provisions in [S. 193] are examples of the kinds of provisions
that I described in my statement as provisions that would
provide enhanced protection for civil liberties without
affecting operational utility.''
The USA PATRIOT Act Sunset Extension Act of 2011, S. 193,
as amended and reported by the Committee, and as described more
fully below, recognizes the Government's need to maintain the
tools necessary for effective counterterrorism investigations
while protecting the civil liberties and constitutional rights
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 tangible
things, and the ``lone wolf'' provision. It also imposes a new
sunset on the use of NSLs.
In expressing support for periodic review and oversight, a
number of former intelligence officials and national security
experts wrote to Senate Leadership on February 9, 2011, that:
``A permanent extension . . . risks avoiding the kind of
assessment of authorities for national security investigations
that we believe is required to ensure that they adequately and
appropriately preserve civil liberty and privacy and protect
national security.'' (Letter from William Banks, Director of
the Institute for National Security and Counterterrorism at
Syracuse University College of Law, et al, to Senators Reid and
McConnell, dated February 9, 2011.)
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.'' The bill as reported
expands oversight by mandating new audits by the Inspector
General of the Department of Justice, requiring new court-
approved minimization procedures on surveillance authorities,
and including more detailed public reporting on the use of
surveillance under FISA. As set forth more fully below, the
bill strengthens oversight and judicial review, and addresses
constitutional concerns about NSL nondisclosure orders raised
by the United States Court of Appeals for the Second Circuit.
See Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008).
The bill has been endorsed by the Fraternal Order of
Police, which stated that the ``bill will maintain tools used
by law enforcement . . . without additional barriers or legal
loopholes.'' (Letter from Chuck Canterbury, National President,
National Fraternal Order of Policy, to Chairman Leahy, Dated
March 14, 2011.) In addition, S. 193 was endorsed by the
Vermont Library Association, the American Library Association,
the Association of Research Libraries, the American Association
of Law Libraries, the Medical Library Association, and the
Special Library Association.
D. EXPIRING PROVISIONS OF THE USA PATRIOT ACT
1. Section 215 Orders for Tangible Things
Section 215 of the 2001 USA PATRIOT Act (codified at 50
U.S.C. Sec. 1861) amended FISA to enable the Government to
apply for an order requiring an individual or entity to produce
tangible things--including books, records, papers, or
documents--that are relevant to an authorized investigation
involving foreign intelligence, international terrorism, or
clandestine intelligence activities. Since its passage in 2001,
this provision of the USA PATRIOT Act--sometimes called the
``library provision'' because of concerns that the Government
could use it to obtain records and patron lists from libraries
and bookstores--has been extremely controversial. It expires on
May 27, 2011.
a. History and Current Law on Section 215 Orders for
Business Records and Other Tangible Things
As originally enacted, FISA did not contain any provision
authorizing the Government to require the production of
documents or tangible things. In 1998, Congress amended FISA to
allow the FBI to apply for a court order to obtain ``records''
from a ``common carrier, public accommodation facility,
physical storage facility, or vehicle rental facility.'' From
1998-2001, any records sought under this provision had to be
for ``an investigation to gather foreign intelligence
information or an investigation concerning international
terrorism,'' and the application had to provide ``specific and
articulable facts giving reason to believe that the person to
whom the records pertain [was] a foreign power or an agent of a
foreign power.''
The 2001 USA PATRIOT Act eliminated the restriction on the
types of entities that were subject to this authority. Current
law enables the FBI to seek production from any person or
entity. The 2001 USA PATRIOT Act also expanded the scope of
this authority by allowing the Government to seek ``any
tangible things''--not just ``records''.
Additionally, the 2001 USA PATRIOT Act and the subsequent
2005 USA PATRIOT Act Reauthorization lowered the standard for
obtaining section 215 orders by eliminating the requirement
that an application specify ``specific and articulable facts''
giving reason to believe that the person to whom the records
pertain is a foreign power or an agent of a foreign power.
Under current law, the records or tangible things sought need
not pertain to a foreign power or an agent of a foreign power.
Instead, a statement of facts demonstrating mere relevance to
an authorized investigation is sufficient.
Under current law, in order to obtain a section 215 order,
the Government must submit a statement of facts showing that
there are reasonable grounds to believe that the tangible
things sought are relevant to an authorized investigation to:
(1) obtain foreign intelligence information (not concerning a
United States person); (2) protect against international
terrorism; or (3) protect against clandestine intelligence
activities. The underlying investigation must be conducted in
accordance with Attorney General guidelines, and may not be
conducted on a U.S. person based solely on that person's First
Amendment activity.
Tangible things are presumptively relevant to an
investigation if they pertain to any of the following: (1) a
foreign power or an agent of a foreign power; (2) the
activities of a suspected agent of a foreign power who is the
subject of an authorized investigation; or (3) an individual in
contact with, or known to, a suspected agent of a foreign power
who is the subject of an authorized investigation. When the FBI
seeks production of certain materials, including library
circulation records, library patron lists, book sales records,
firearms sales records, tax return records, educational
records, or medical records, the application can be made by
only a handful of high-ranking FBI officials. In all other
instances, the authority to apply for section 215 orders can be
delegated to the heads of FBI field offices. A recipient of a
section 215 production order may challenge the legality of that
order by filing a petition with the FISA Court.
A recipient of a section 215 order may not disclose that
fact, except to those persons to whom disclosure is necessary
to comply with the order, or to an attorney to obtain legal
advice or assistance with respect to the production of things
in response to the order. The recipient may challenge these
nondisclosure requirements--but only after a year has passed
since receipt of the section 215 order. The court must apply a
conclusive presumption that nondisclosure is justified if the
Government certifies that it would endanger national security.
b. Changes to Section 215 Contained in S. 193, as Reported
The USA PATRIOT Act Sunset Extension Act of 2011 adjusts
the requirements for obtaining a court order for tangible
things under FISA. First, the language modifies the statute
slightly to strike the requirement for a ``statement of
facts,'' and instead requires ``a statement of the facts and
circumstances relied upon by the applicant to justify the
belief of the applicant'' that the items sought are relevant to
an authorized investigation. The language in the bill does not
raise the standard, and is not intended to affect or restrict
any activities approved by the FISA Court under existing
statutory authorities. In addition, it is not vague or untested
language. In fact, other sections of FISA use identical
language. These are section 104 of FISA, which governs
electronic surveillance, and section 303 of FISA, which covers
physical searches.
Second, the bill removes the presumption of relevance
described above. The bill 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. The Department of Justice has
indicated that it does not rely on this presumption, and that
its current practice is to provide the Foreign Intelligence
Surveillance Court with a complete statement of facts to
support issuance of an order.
Third, to obtain library records that contain personally
identifiable information about a library patron, or bookseller
records, the bill requires the Government to provide 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 a foreign power subject to the
investigation. ``Bookseller records'' are defined as meaning
any transactional records reflecting the purchase or rental of
books, journals, or magazines, whether in digital or print
form. In a letter to Chairman Leahy dated December 9, 2010, the
Attorney General agreed to implement this library and
bookseller records requirement administratively. (Letter from
Attorney General Eric Holder to Chairman Leahy dated December
9, 2010.)
Fourth, the bill repeals the one-year waiting period for
the recipient of a section 215 order to be able to challenge an
accompanying nondisclosure or ``gag'' order. 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. The Department of Justice has stated
that it has no objection to repealing these provisions.
2. ``Roving'' Wiretaps
a. History and Current Law on ``Roving'' Wiretaps
Section 206 of the 2001 USA PATRIOT Act expanded the
wiretap provisions of FISA to permit the Government to obtain
secret ``roving'' wiretap orders in intelligence
investigations.
Previously, a wiretap order under FISA had to identify both
the person who is the target of the surveillance and the phone
or computer to be wiretapped. Section 206 authorized the FISA
Court to issue wiretap orders that identify the target of the
surveillance but not the specific communications device being
used by the target--effectively permitting the Government to
wiretap new phones or computers being used by that target
without going back to the court for advance approval.
To obtain a ``roving'' wiretap order under FISA, the
Government must demonstrate to the court that the actions of
the target may have the effect of thwarting surveillance. In
addition, changes made during the 2005 USA PATRIOT Act
Reauthorization process require the Government to report to the
FISA Court whenever it initiates surveillance on a new phone or
computer not listed in the original ``roving'' wiretap order.
The criminal wiretap law permits ``roving'' wiretaps, as
well, but it contains additional safeguards that the FISA
``roving'' wiretap provision does not. First, FISA permits a
``John Doe roving wiretap'' that does not identify the person
or the phone to be wiretapped. The criminal law contains no
such provision. Second, the criminal wiretap law permits
surveillance of a new phone or computer under a ``roving''
wiretap order only while agents have some indication the target
is using it. Specifically, under the criminal law, surveillance
is allowed ``only for such time as it is reasonable to presume
that the person identified in the application is or was
reasonably proximate to the instrument through which such
communication will be or was transmitted.'' This is often
called the ``ascertainment'' requirement, and FISA does not
contain such a requirement for FISA ``roving'' wiretaps.
b. Changes made to the Wiretap Statute Contained in S. 193,
as Reported
In addition to placing a new sunset on the FISA ``roving''
wiretap authority of December 31, 2013, the bill modifies the
requirement for FISA wiretap orders. This section is intended
to amend the FISA wiretap statute (50 U.S.C. 1805(c)(1)(A)) so
as to require law enforcement to identify ``with
particularity'' the target of a wiretap request under FISA. The
Department of Justice has testified that, in applications to
the FISA Court for ``roving'' wiretaps, it already, as a matter
of practice, provides the court sufficient detail to identify
the target with particularity. (Written Testimony of Acting
Assistant Attorney General Todd Hinnen, Department of Justice,
National Security Division, before the House Judiciary
Committee, Subcommittee on Crime, Terrorism, and Homeland
Security, March 9, 2011, at p. 2).
3. ``Lone Wolf'' Surveillance Authority
a. History of the ``Lone Wolf'' Surveillance Authority
The Intelligence Reform and Terrorism Prevention Act of
2004 included a provision that created a new category of
persons subject to surveillance under FISA, titled ``Individual
Terrorists as Agents of Foreign Powers.'' (P.L. 108-458, Sec.
6001.) This provision is often called the ``lone wolf''
provision. It expires on May 27, 2011.
Under FISA, a ``lone wolf'' is a person the Government has
probable cause to show is engaging or preparing to engage in
``international terrorism,'' and who is not a U.S. person,
meaning not a U.S. citizen or a lawful permanent resident. This
definition may include a person who has no known ties to a
foreign organization or government. Prior to enactment of this
section, FISA required such a foreign nexus.
``Lone wolf'' is often called the ``Moussaoui fix,'' but
that label is a misnomer. The misunderstanding stems from
claims that the FBI was unable to search a computer used by
Zacharias Moussaoui, the so-called 20th hijacker in the
September 11, 2001, attacks, because it could not establish
probable cause to believe he was acting on behalf of a foreign
power. Those claims are inaccurate, however, and the FBI later
admitted in testimony before Congress that the agent in charge
of the investigation did not understand that probable cause was
the standard, what probable cause meant in this context, or the
legal definition of an agent of a foreign power.\3\
---------------------------------------------------------------------------
\3\ The suggestion in the Minority Views that the ``lone wolf''
provision ``ha[s] helped federal law enforcement and intelligence
agencies stay ahead of terrorists to prevent or thwart planned
attacks'' is inaccurate. During testimony before the Committee on March
30, 2011, FBI Director Robert Mueller confirmed that the ``lone wolf''
authority has still never been used. Accordingly, it is similarly
inaccurate and illogical to suggest that the ``lone wolf'' authority
should be made permanent because it has never been abused. To the
contrary, significant questions have been raised about the
constitutionality of wiretapping a person in the U.S. who has committed
no crime and has no connection to international terrorist
organizations, as the ``lone wolf'' provision allows.
---------------------------------------------------------------------------
b. Changes made to the ``Lone Wolf'' Statute Contained in
S. 193, as Reported
The bill makes no changes to the ``lone wolf'' statute; it
merely ensures continuing congressional oversight by extending
the sunset from May 27, 2011, to December 31, 2013.
E. OTHER SURVEILLANCE PROVISIONS OF THE USA PATRIOT ACT ADDRESSED IN S.
193
1. National Security Letter (NSL) Authority
a. History of NSL Authority
A National Security Letter (NSL) is a surveillance tool
that allows intelligence and law enforcement officials to
obtain certain types of communications and financial records
sought in connection with intelligence and national security
investigations.
National Security Letters were first authorized by the
Right to Financial Privacy Act (RFPA) in 1986. By 2001, there
were four NSL authorities in place under the RFPA, the
Electronic Communications Privacy Act, the Fair Credit
Reporting Act, and the National Security Act. The 2001 USA
PATRIOT Act added a fifth NSL authority under the Fair Credit
Reporting Act. Before 2001, NSLs allowed the FBI limited access
to financial, credit agency, telephone, Internet Service
Provider, and other communications records.
Under current law, the Government can obtain such records
if the information sought is relevant to an investigation to
protect against international terrorism or espionage. The
Government does not need to show that the records sought
pertain to or are otherwise connected to a foreign power or an
agent of a foreign power.
National Security Letters do not require a court order.
They are a form of administrative subpoena issued by FBI and
other officials. Typically, they are served with nondisclosure
orders, or ``gag'' orders, prohibiting the recipient from
revealing its issuance.
b. Expansion of NSL Authority Under the 2001 USA PATRIOT
Act
Prior to 2001, an FBI official had to show a factual basis
for believing that the records sought pertained to an agent of
a foreign power before issuing an NSL.
Section 505 of the 2001 USA PATRIOT Act expanded the NSL
authorities in ways not contemplated by the original RFPA in
1986. The result of these changes is that the FBI may now
obtain information on individuals who are not the subjects of
national security investigations. It eliminated the requirement
that the information sought pertain to a foreign power or an
agent of a foreign power. It also eliminated the requirement to
show a factual basis, enabling the FBI to rely upon mere
relevance to an investigation to protect against international
terrorism or foreign espionage.
The 2001 USA PATRIOT Act also expanded the authority to
issue NSLs beyond FBI headquarters to include the heads of the
FBI field offices (i.e., Special Agents in Charge). The 2001
USA PATRIOT Act also expanded the list of authorized issuers of
certain NSLs under the Fair Credit Reporting Act to include
intelligence agencies.
c. Further Expansions of NSL Authority Enacted in 2004
The Intelligence Authorization Act for FY 2004 (P.L. 108-
177) modified the definition of ``financial institution'' to
allow the FBI to issue NSLs under the Right to Financial
Privacy Act to a much broader range of businesses, including
travel and real estate agencies, jewelers, insurance companies,
casinos, car dealers, and the U.S. Postal Service. Financial
records were redefined to include ``any record held by a
financial institution pertaining to a customer's relationship
with the financial institution.''
The FBI issued policy guidance in 2007 stating that FBI
officials should not rely upon this statute to obtain records
from the expanded list above that were not ``financial in
nature.''
d. The 2005 USA PATRIOT Act Reauthorization Governs
Challenges to NSLs
The 2005 USA PATRIOT Act Reauthorization addressed how the
Government may compel compliance with both an NSL and a
nondisclosure order accompanying an NSL.
The law gave the Government explicit power to compel
compliance with an NSL. Failure to comply may be punished with
contempt of court. If the recipient of a nondisclosure order
knowingly and with intent to obstruct an investigation
discloses its existence, the recipient faces five years in
prison.
The law allows the recipient of a nondisclosure order to
challenge the nondisclosure in Federal court. If the challenge
is filed within a year of issuance, however, and the Government
certifies that disclosure may harm national security, the judge
must treat that certification as conclusive. If the recipient
challenges the nondisclosure after one year, the Government
must recertify harm to national security or terminate the
nondisclosure order. The 2005 USA PATRIOT Act Reauthorization
also gave the recipient of an NSL the ability to challenge it
in Federal District Court. In 2008, the United States Court of
Appeals for the Second Circuit found the NSL nondisclosure
provisions unconstitutional. Doe v. Mukasey, 549 F.3d 861 (2d
Cir. 2008). The USA PATRIOT Act Sunset Extension Act of 2011,
S. 193, codifies the process suggested by the Second Circuit to
correct this constitutional defect (see below). Without this
legislative correction, the nondisclosure provision remains
constitutionally infirm.
e. Changes to NSL Authority Contained in S. 193, as
Reported
The USA PATRIOT Act Sunset Extension Act of 2011, S. 193,
does not raise the standard for issuing an NSL but does make
some targeted changes to ensure NSLs are issued in full
compliance with law and practice.
The instances of FBI misuse and abuse of NSLs discussed
above are well documented. Therefore, to ensure that NSLs are
not being issued arbitrarily, the bill requires the FBI to
retain a written statement of specific facts demonstrating the
relevance of the NSL to an authorized investigation. This
allows FBI supervisors to ensure that agents are using NSLs
properly, and provides auditors with the information necessary
to audit NSL records.
The Attorney General has stated that retention of a written
statement of facts is exactly what current FBI policy requires.
The new computer system requires the FBI to add the statement
of facts to the application for an NSL. Therefore, the bill
would simply codify current FBI practice. There would be no new
recordkeeping requirements imposed on the FBI.
Second, the bill corrects the constitutional defects in the
issuance of nondisclosure orders on NSLs as found by the United
States Court of Appeals for the Second Circuit in Doe v.
Mukasey, 549 F.3d 861 (2d Cir. 2008), and adopts the concepts
suggested by that court for a constitutionally sound process.
Id. at 883-84. 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.
Finally, S. 193, as reported, places a sunset on NSL
authority. If the sunset were reached under the bill, NSL
authority would revert to that statute as of September 10,
2001, prior to enactment of the 2001 USA PATRIOT Act. The
sunset was added not as an expression of desire for the
authority to expire, but to guarantee that Congress will
carefully review how NSLs are issued. An NSL does not need to
be presented to a court, a grand jury, or a prosecutor.
National Security Letters are typically issued in secret, with
recipients silenced under penalty of law. After the standard
for issuing an NSL was lowered in 2001, the use of NSLs spiked.
Fewer than 10,000 NSLs were issued in 2001, but nearly 50,000
were issued in 2006. Seeing that growth, Congress included
Inspector General audits of NSLs in the 2005 USA PATRIOT Act
Reauthorization bill. The audits showed vast over-collection of
information and abuse of the NSL authority. They also revealed
that the FBI used exigent letters over 700 times without proper
authorization, and then compounded that misconduct by trying to
issue NSLs after the fact to conceal its actions. The bill,
therefore, includes the sunset of December 31, 2013, and audits
on the use of NSLs.
2. Delayed Notice Search Warrants
a. History of Delayed Notice Search Warrants
Prior to the 2001 USA PATRIOT Act, courts had authorized
delayed notice searches in cases where the suspect might flee
or destroy evidence. But two leading court decisions required
that notice of the search be given within seven days, unless
extended by the court. Section 213 of the 2001 USA PATRIOT Act
created legislative authorization for delayed notice searches
for the first time, but allowed notice to occur within ``a
reasonable time.'' During the 2005 USA PATRIOT Act
Reauthorization process, Congress imposed the 30-day notice
requirement, but still allowed courts to set longer notice
periods where justified.
Section 213 of the 2001 USA PATRIOT Act authorized the use
of delayed notice, or ``sneak and peek,'' search warrants in
criminal cases. These warrants allow law enforcement agents to
enter and search an American's home or business, but not notify
the owner until weeks or even months later. To obtain such a
warrant, the Government must demonstrate to the court that
notice would endanger someone's safety, result in flight from
prosecution, destruction of evidence, or intimidation of
potential witnesses, or otherwise seriously jeopardize an
investigation.
Under current law, notice to the owner must be provided
within 30 days, or later if the court authorizes it. In
addition, the court can extend the time period for additional
periods of 90 days, or longer if justified. In addition to the
delayed notice search authority in criminal cases, the
Government also has the authority under FISA to conduct secret
searches of homes and businesses in intelligence investigations
without ever providing notice.
Recent reports to Congress from the Administrative Office
of the U.S. Courts show that the use of delayed notice search
warrants has nearly tripled in the past few years, but that
these warrants have been used very rarely in terrorism cases.
In fiscal year 2009, Federal prosecutors requested 1,150
delayed notice search warrants and 749 extensions (for a total
of 1,899)--up from 419 warrants and 271 extensions (for a total
of 690) just two years prior. In addition, only 14 of those
1,899 warrant and extension requests in fiscal year 2009 were
made in terrorism cases. In contrast, 1,456 requests were in
drug cases.
b. Changes to Delayed Notice Search Warrants Contained in
S. 193, as Reported
During the 2009 Senate Judiciary Committee markup of the
USA PATRIOT Act Sunset Extension Act, S. 1692, an amendment was
offered to require that subjects of delayed notice searches be
notified of the search within 7 days, unless a judge grants an
extension. It made no other change to the statute other than
changing 30 days to 7 days. That amendment is retained as
section 11 of S. 193, as reported.
F. RESPONSE TO THE MINORITY VIEWS AND OTHER CLAIMS RAISED DURING
COMMITTEE CONSIDERATION OF S. 193
1. Response to Minority Views
There is nothing to support the claim in the Minority Views
that the bill somehow creates or rebuilds a ``wall'' between
criminal investigations and intelligence gathering efforts. To
the contrary, the bill codifies current practice and makes
modest improvements to increase transparency and
accountability. None of those improvements impede the
operational abilities of law enforcement or the intelligence
community to protect against terrorism, or to share information
in that effort.
The Minority Views claim that the bill, S. 193, makes
``significant changes to existing national security law,''
which would ``increase burdens on investigators'' and ``result
in delays.'' The Senators who signed the Minority Views claim
to ``vigorously oppose the changes'' contained in the bill and
vow to ``offer a number of amendments to limit the damage''
they assert the bill would cause. These statements are
undermined by two objective facts. First, two of the Senators
who signed the Minority Views on S. 193, Senators Kyl and
Cornyn, voted in favor of reporting a virtually identical bill
in the 111th Congress (S. 1962). Second, none of the Senators
who signed the Minority Views offered a single amendment during
the Committee's consideration of the bill to address any of the
provisions of the bill that they now decry as burdensome or
otherwise problematic. Rather, they chose to offer amendments
that were wholly unrelated to the surveillance issues at the
heart of the USA PATRIOT Act. Given the opportunity to strike
portions of the bill that they claim to so strenuously oppose,
they instead sought to increase penalties for various crimes,
create a new death penalty provision for certain crimes, and
modify the immigration statute.
The Minority Views also take great pains to suggest that
the Department of Justice, FBI, and the intelligence community
do not fully support S. 193. References to the personal
preference of the FBI Director and unattributed comments from
administration officials do not, however, reflect the
collective viewpoint of the administration, including the
Department of Justice and the intelligence community. Indeed,
at a February 28, 2011, briefing attended by several members of
the Committee, including at least three who signed the Minority
Views, the Assistant Attorney General for the National Security
Division stated that the letters sent by the Attorney General
and Director of National Intelligence in 2009 and 2010
expressing the administration's ``strong support'' for the
precursor bill (S. 1692, 111th Congress) remain in force as
official statements of administration policy. In the same
briefing, the General Counsel to the Director of National
Intelligence repeatedly stated that S. 193 is the product of
extensive negotiations between the executive branch and
Congress and that the bill poses no operational concerns for
law enforcement or the intelligence community.
The Minority Views seek to criticize a number of specific
provisions of the bill. Responses to these assertions are set
forth below.
a. Written Statement of Specific Facts in Support of NSLs:
The Minority Views claim that the bill will somehow confuse the
FBI by requiring the agency to retain in its files a written
statement of specific facts that show reasonable grounds to
believe the information sought is relevant to an investigation.
The FBI already records a statement of specific facts when it
issues an NSL, a practice it adopted to avoid future misuse and
abuse of the NSL authority of the type documented by the
Inspector General in his March 2007 report on NSLs. See FBI
Domestic Investigations and Operations Guide, Section 11.9.3.C.
Taking issue with the word ``specific'', the Minority Views
suggest that this requirement will confuse the FBI and cause
operational problems, not unlike the failure of the FBI to
obtain a search warrant of Zacharias Moussaoui's computer prior
to September 11, 2001. The comparison does not make sense. The
FBI failed to obtain a search warrant for Moussaoui's computer
because, as Senator Grassley co-wrote in a 2003 Committee
report, ``key FBI personnel responsible for protecting our
country against terrorism did not understand the law.'' (FBI
Oversight in the 107th Congress by the Senate Judiciary
Committee: FISA Implementation Failures--An Interim Report by
Senators Leahy, Grassley, and Specter, February 2003, at 20,
available at http://grassley.senate. gov/releases/2003/p03r02-
25c.pdf (``2003 Leahy-Grassley-Specter FISA Report'')). The
2003 Leahy-Grassley-Specter FISA Report, which calls throughout
for enhanced congressional oversight, attributed this failure
to a ``fundamental breakdown in training.'' Id. at 21. The
report concluded, ``We simply cannot continue to deny or ignore
such training flaws only to see them repeated in the future.''
Id. at 30.
The language in S. 193 regarding retention of a written
statement of specific facts directly responds to the failure of
the FBI to properly issue NSLs. After the misuse and abuse of
NSLs were documented by the Department of Justice Inspector
General, the FBI engaged in a process to reform its NSL
issuance practice. The bill, S. 193, simply codifies that
practice. In short, S. 193 provides assurance that the FBI will
follow the law, rather than become confused by it. Finally, it
is worth noting that while the Minority Views takes issue with
the use of the word ``specific'', there is apparently no
operational or policy concern with requiring the FBI to retain
a written statement of facts to support the issuance of NSLs.
Again, this is not surprising, given that this is already
current FBI practice.
b. Presumption of Relevance in Section 215 Orders: The
Minority Views claim that ``for reasons that have yet to be
fully explained, S. 193 removes the current presumption.'' The
presumption is removed because it was an unnecessary addition
to the 2005 USA PATRIOT Act Reauthorization that serves no
purpose but to give the Government authority it has not
requested be retained. Indeed, David Kris, former Assistant
Attorney General for the National Security Division,
acknowledged during testimony in September 2009 before this
Committee that the relevance standard for obtaining a section
215 order--``with or without the presumption is not a very high
standard.'' It is therefore unsurprising that the minority
fails to cite to any facts or sources to support its assertion
that the removal of the presumption would somehow lead to
delays in drafting applications.
c. Factual Basis for Section 215 Orders and for Pen
Registers and Trap and Trace Devices (PR/TT): The Minority
Views wrongly claim that a certain phrase added to section 215
orders and PR/TT requirements (``a statement of facts showing
reasonable grounds to believe that . . .'') will change the
standard required to obtain this information by ``injecting
vague language into a statute depends heavily on its
definitions.'' In fact identical language is used in Title I
and Title III of FISA. To ensure that the new language is not
interpreted to raise the standard, the sectional analysis in
this Committee Report states the clear intent to neither affect
nor restrict any activities approved by the FISA Court. This
same report language was included in the Committee Report for
S. 1692 from the 111th Congress. The Department of Justice,
FBI, and Director of National Intelligence have all endorsed
this language.
d. Library and Bookseller Records: The Minority Views
assert that the standard for obtaining library and bookseller
records under the reported version of S. 193 will create an
``open invitation to terrorists to use unsuspecting third
parties to communicate with associates.'' Yet this requirement,
which was supported by the Chairman of the Intelligence
Committee, Senator Feinstein, is already being implemented by
the Attorney General as indicated in his December 9, 2010
letter to Chairman Leahy. Although the Minority Views suggest
that the section 215 standard for library and bookseller
records under S. 193 could have impeded the FBI investigation
of Khalid Aldawsari, the individual arrested on terrorism-
related charges in Texas on February 23, 2011, the Attorney
General noted in his December 2010 letter to Chairman Leahy
that it is already current FBI practice to provide the FISA
Court with a complete statement of facts to support issuance of
a section 215 order.
e. FISA Court Review of Section 215 Minimization: The
Minority Views complain that FISA Court review of minimization
might lead to differing minimization requirements being applied
to different cases. This claim ignores the practice of the FISA
Court, which has already approved minimization standards for
section 215 orders. The language in S. 193 simply codifies
current practice, required by statute under 50 U.S.C.
Sec. 1861(b)(2)(B), a fact confirmed in the December 9, 2010
letter from the Attorney General to Chairman Leahy.
f. Delayed Notice Warrants: The Minority Views claim that
S. 193 will hamper law enforcement by changing the period of
time after which the Government must inform the target of a
delayed notice search warrant from 30 days to 7 days. The
Government can, and often does seek extensions of these orders.
The administration endorsed this provision, noting that as long
as extensions may be sought from a court, it does not oppose
modifying the number of days prior to notification.
2. Response to other claims raised during committee consideration of S.
193
During Committee consideration of S. 193, opponents of the
bill suggested that no evidence has been provided to the
Committee to justify changes to current law. In fact, several
modifications to current law contained in the bill are the
result of problems discovered by the Department of Justice
Inspector General in reports and audits. As noted above, the
Department of Justice Inspector General found extensive
evidence of misuse of National Security Letters. A March 2007
report ``concluded that the FBI engaged in serious misuse of
NSL authority,'' including improper authorization of NSLs,
improper requests under the pertinent national security letter
statutes, and unauthorized collections. The report also
identified more than 700 instances in which the FBI improperly
obtained telephone records by issuing ``exigent letters.'' The
Department of Justice Inspector General also found a small
number of instances in which improper use of section 215 orders
by the FBI resulted in over-collection of information. The bill
codifies the changes in practice by the FBI that will prevent
such misuse from occurring in the future, and builds in an
audit trail so that both the FBI and the Department of Justice
Inspector General can monitor future compliance.
Another assertion raised in the markup is that there has
been no situation in which prosecutors overstepped their
authority and were overruled by a court. The United States
Court of Appeals for the Second Circuit found constitutional
defects in current law restricting the ability of a recipient
of a nondisclosure order on an NSL to challenge that
nondisclosure order. See Doe v. Mukasey, 549 F.3d 861 (2d Cir.
2008). To correct the constitutional infirmity, the bill adopts
the concepts suggested by that court for a constitutionally
sound process. This provision of the bill should be
uncontroversial. Similar language was introduced as part of a
bill sponsored by Senators Sessions, Bond (R-MO), and Lieberman
(ID-CT) in the 111th Congress. (See section 4 of S. 2336, 111th
Cong.)
The majority of legal review of surveillance authorities
takes place before the FISA Court, away from public scrutiny.
Yet in April 2009, the Department of Justice confirmed to the
press that ``there had been problems with the NSA surveillance
operation.'' The Department of Justice also confirmed that
Attorney General Holder went to the FISA Court to seek a
renewal of the surveillance program only after new safeguards
were put in place. Several intelligence officials told the
press that ``the N.S.A. had been engaged in `overcollection' of
domestic communications of Americans.'' (New York Times,
``Officials Say U.S. Wiretaps Exceeded Law,'' April 16, 2009.)
Additional reforms and improvements to the USA PATRIOT Act
are necessary. To say otherwise is to ignore the facts. The FBI
has made progress in addressing the problems documented by the
Department of Justice Inspector General, but the positive steps
it has taken should be codified in statute to ensure that
mistakes are not made in the future. By the same token, a lack
of evidence of abuse does not suggest that surveillance
provisions should be made permanent, particularly when one of
those provisions--the ``lone wolf'' provision--has never even
been used, and therefore is not susceptible to review. The
purpose of the sunsets in the bill is to guarantee that
Congress will carefully review the use and effect of laws that
authorize surveillance of Americans. The version of the USA
PATRIOT Act Sunset Extension Act that the Committee reported in
2009 was virtually identical to the 2011 version and received
bipartisan support, with Senators Kyl and Cornyn voting in
favor of reporting the bill to the full Senate. The 2011
version of the bill, S. 193, also received a bipartisan vote,
with Senator Lee voting in favor of the bill.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
The USA PATRIOT Act Sunset Extension Act of 2011 was
introduced as S. 193 on January 26, 2011 by Senator Leahy.
B. COMMITTEE CONSIDERATION
Executive Business Meetings
The bill was placed on the Committee's agenda for
consideration on February 3, 2011. It was held over on that
date.
On February 17, 2011, the Committee on the Judiciary
considered S. 193 during an executive business meeting.
Chairman Leahy offered an amendment to modify the due dates of
the audits contained in section 10 of S. 193. The amendment was
accepted by consent.
Senator Feinstein offered an amendment to extend the
sunsets in the FISA Amendments Act of 2008 (Pub. L. No. 110-
261), from December 31, 2012, to December 31, 2013. Therefore,
if S. 193, as amended is enacted, the sunsets in the USA
PATRIOT Act and the sunsets in the FISA Amendments Act of 2008
will be aligned to expire on the same date. The amendment was
accepted by consent.
Senator Leahy offered an amendment regarding the standard
for obtaining bookseller records under section 215 of the USA
PATRIOT Act to the bill, to match the requirement already
contained in the bill for library records. The Committee
adjourned prior to disposing of the amendment. Senator Grassley
objected to completing consideration of the amendment and
requested that the Chairman arrange a classified briefing with
officials from the Department of Justice and the intelligence
community. A classified briefing for members of the Committee
was provided on February 28, 2011, by officials from the
Department of Justice, the Office of the Director of National
Intelligence, and the National Security Agency.
On March 10, 2011, the Committee on the Judiciary resumed
consideration of S. 193.
Senator Leahy offered a technical amendment to modify S.
193 to reflect the fact that Congress enacted a short term
extension of the expiring provisions from February 28, 2011, to
May 27, 2011. The amendment was accepted by consent.
Senator Leahy then offered a modified version of the
bookseller amendment he previously offered on February 17,
2011. The new version was virtually identical to the earlier
bookseller amendment, but struck the phrase ``and articulable''
from the phrase ``specific and articulable facts'' to conform
the amendment to the language in the underlying bill relating
to section 215 orders. The amendment was accepted by a roll
call vote.
The vote record is as follows:
Tally: 11 Yeas, 7 Nays
Yeas (11): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Lee (R-UT), Leahy (D-VT).
Nays (7): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Coburn (R-OK).
Senator Grassley offered an amendment to add the death
penalty as a punishment to certain crimes involving weapons of
mass destruction. Senator Leahy offered a motion to table the
amendment. The motion to table was rejected by a roll call
vote.
The vote record is as follows:
Tally: 7 Yeas, 10 Nays, 1 Pass
Yeas (7): Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT), Leahy (D-
-VT).
Nays (10): Feinstein (D-CA), Schumer (D-NY), Grassley (R-
IA), Hatch (R-UT), Kyl (R-AZ), Sessions (R-AL), Graham (R-SC),
Cornyn (R-TX), Lee (R-UT), Coburn (R-OK).
Pass (1): Kohl (D-WI).
The Grassley amendment was then accepted by voice vote.
Senator Durbin offered an amendment cosponsored by Senator
Lee to modify the ``roving'' wiretap statute to require that
the Government describe the target of FISA surveillance with
particularity. The amendment was accepted by roll call vote.
The vote record is as follows:
Tally: 11 Yeas, 7 Nays
Yeas (11): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Lee (R-UT), Leahy (D-VT).
Nays (7): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Coburn (R-OK).
Senator Cornyn offered an amendment to modify the
immigration statute to add terrorism to the list of
characteristics that bar an alien from applying to naturalize
or seek other immigration benefits because of a lack of good
moral character. Senator Leahy offered a motion to table the
amendment. The motion to table was accepted by a roll call
vote.
The vote record is as follows:
Tally: 10 Yeas, 8 Nays
Yeas (10): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Leahy (D-VT).
Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT),
Coburn (R-OK).
Senator Whitehouse offered a conforming amendment to strike
the words ``and articulable'' from the section of S. 193
regarding judicial review of NSLs. Under the revised language,
the bill would require the applicant for a nondisclosure order
accompanying an NSL to include a statement of specific facts
indicating that nondisclosure is necessary to prevent a danger
to national security or other enumerated harms. The amendment
was accepted by voice vote.
Senator Kyl offered three amendments that would have
increased penalties and added mandatory minimum sentences for
crimes involving terrorism hoaxes, sexual assault, kidnapping,
and suicide bombing, among others. Senator Kyl withdrew the
amendments.
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, 7 Nays
Yeas (10): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MI), Franken (D-
MI), Coons (D-DE), Blumenthal (D-CT), Lee (R-UT), Leahy (D-VT).
Nays (7): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), 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 2011.''
Section 2. Sunsets
This section extends the sunsets on the provisions for
``lone wolf,'' roving wiretaps and orders for tangible things
from May 27, 2011 to December 31, 2013. This section
establishes a sunset of December 31, 2013, on the use of NSLs.
This section also changes the sunset dates for provisions under
the FISA Amendments Act of 2008 (Pub. L. No. 110-261) from
December 31, 2012 to December 31, 2013. 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. The Department of Justice has indicated
that it does not rely on this presumption, and that its current
practice is to provide the Foreign Intelligence Surveillance
Court with a complete statement of facts to support issuance of
an order.
Section 3(a)(2)(A) alters certain requirements with respect
to applications made pursuant to 50 U.S.C. Sec. 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. Sec. 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 records that contain personally
identifiable information about a patron, or bookseller records,
the Government must provide 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. ``Bookseller
records'' are defined as meaning any transactional records
reflecting the purchase or rental of books, journals, or
magazines, whether in digital or print form. The Department of
Justice has already agreed to implement this requirement
administratively.
This section also requires court review of minimization
procedures. Finally, this section includes transition
procedures to ensure that any order in effect at the time of
enactment remains in effect until the expiration of the order.
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. Sec. 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. Sec. 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. Sec. 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.
Finally, this section includes transition procedures to
ensure that any order in effect at the time of enactment
remains in effect until the expiration of the order.
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 FBI has stated that its current
practice is to require such a certification to include an
appropriately thorough statement of facts setting forth the
need for nondisclosure.
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, 549 F.3d 861
(2d Cir. 2008), and adopts the concepts suggested by that court
for a constitutionally sound process. Id. at 883-84. 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.
According to current Department of Justice policy, all NSLs
must include a notice that informs recipients of the
opportunity to contest the nondisclosure requirement through
the Government-initiated judicial review. This section states
that the government's application for an NSL nondisclosure
order may be filed either in the district within which the
authorized investigation is conducted or in the jurisdiction
where the recipient's business is located. This option will
ease the burden on the recipient in challenging the
nondisclosure order.
This section requires the Government to notify any entity
that challenges a nondisclosure order when the need for
nondisclosure is terminated. The Department of Justice agreed
to implement this measure administratively in December 2010;
therefore, this section will codify current practice.
The bill also requires FISA Court approval of minimization
procedures in relation to the issuance of a section 215 order
for production of tangible things, 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 written statement of specific facts showing
that there are reasonable grounds to believe 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. The Department
of Justice has stated that it is current policy for the FBI to
retain a statement of specific facts showing the information
sought through NSLs is relevant to an authorized investigation.
Section 8. Public reporting on national security letters
This section requires reporting of aggregate numbers based
upon the total number of all NSLs issued each year, as opposed
to by individual NSL. This section ensures that the FBI can
keep an accurate record of the information it must disclose by
allowing it to report both on persons who are the subject of an
authorized national security investigation, and on individuals
who have been in contact with or otherwise directly linked to
the subject of an authorized national security investigation.
Section 9. Public reporting on the Foreign Intelligence Surveillance
Act
This section requires that the Government produce an annual
unclassified report on how the authorities under FISA are used,
including their impact on the privacy of United States persons.
This report shall be easily accessible on the Internet.
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. This section also requires the Inspectors
General of the Intelligence Community to submit separate
reports that also review these three provisions. The audits
covering the years 2007-2009 must be completed by March 31,
2012. The audits for the years 2010-2011 must be completed by
March, 31, 2013. These due dates ensure that Congress will have
time to fully consider the findings of the audits prior to the
December 31, 2013 sunsets in the bill.
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.
Section 12. NSL procedures
Current law does not require minimization procedures be
established, but on October 1, 2010, the Attorney General
adopted procedures concerning the collection, use, and storage
of information obtained in response to NSLs. This section
requires that the Attorney General periodically review, and
revise as necessary, those procedures, and to give due
consideration to the privacy interests of individuals and the
need to protect national security. If the Attorney General
makes any significant changes to these NSL procedures, the
Attorney General is required under this section to notify
Congress, and to submit a copy of the changes.
Section 13. Severability
This section includes a severability clause that will
ensure that in the event any part of the bill or any amendment
to the bill is found to be unconstitutional the remainder of
the bill will not be affected.
Section 14. Offset
This section includes a $5,000,000 offset from the
Department of Justice Assets Forfeiture Fund for any direct
spending that could be incurred by the provisions of the bill.
Section 15. Electronic surveillance
This section is intended to amend the FISA wiretap statute
(50 U.S.C. Sec. 1805(c)(1)(A)) so as to require law enforcement
to identify ``with particularity'' the target of a wiretap
request under FISA. The Department of Justice has testified
that, in applications to the FISA Court for ``roving''
wiretaps, it must provide the court sufficient detail to
identify the target with particularity.
Section 16. Death penalty for certain terror related crimes
This section provides for the possibility of the death
penalty as punishment for certain crimes involving the use of
weapons of mass destruction, including nuclear weapons, missile
systems, radiological devices, and the variola virus.
Section 16. Effective date
This section includes an effective date of 120 days from
the date of enactment for the statutory revisions made by this
legislation to take effect. This period of time will provide
the Government an appropriate amount of time to implement the
new procedures required by the legislation.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S. 193,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
March 31, 2011.
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. 193, the USA PATRIOT
Act Sunset Extension Act of 2011.
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. 193--USA PATRIOT Act Sunset Extension Act of 2011
Summary: 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. 193 would extend, until December
31, 2013, certain provisions of those acts that will otherwise
expire in 2011. In addition, the bill would require the
Department of Justice (DOJ) and certain offices within the
intelligence community to prepare additional reports and audits
relating to those investigations. Finally, S. 193 would
permanently rescind $5 million from the unobligated balances of
DOJ's Assets Forfeiture Fund.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing S. 193 would have discretionary
costs of $9 million over the 2011-2016 period. We also estimate
that enacting the legislation would decrease direct spending by
$5 million over the 2011-2013 period (with no impact after
2013). In addition, we estimate that enacting the bill would
affect revenues, but such effects would not be significant.
Pay-as-you-go procedures apply because enacting the legislation
would affect direct spending and revenues.
CBO has determined that the provisions of S. 193 are either
excluded from review for mandates under the Unfunded Mandates
Reform Act (UMRA) because they are necessary for national
security or they contain no intergovernmental or private-sector
mandates.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 193 is shown in the following table. The
costs of this legislation fall within budget functions 050
(national defense) and 750 (administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------------------------------
2011-
2011 2012 2013 2014 2015 2016 2016
----------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Budget Authority.......................... -5 0 0 0 0 0 -5
Estimated Outlays......................... -1 -2 -2 0 0 0 -5
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level............. 1 4 3 * * * 9
Estimated Outlays......................... 1 4 3 * * * 9
----------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted by July 1, 2011, and that the amounts
necessary to implement the bill will be appropriated for each
year.
Direct spending and revenues
S. 193 would permanently rescind $5 million from the
unobligated balances of the DOJ Assets Forfeiture Fund. CBO
estimates that this rescission would reduce direct spending by
$1 million in 2011 and by $2 million in each of fiscal years
2012 and 2013.
Because those prosecuted and convicted under S. 193 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.
Spending subject to appropriation
We estimate that implementing the bill would cost about $9
million over the 2011-2016 period, assuming appropriation of
the necessary amounts. S. 193 would require the inspectors
general of DOJ and certain offices within the intelligence
community, by March 31, 2013, to conduct audits of their
agencies' use of selected investigative powers during the 2007-
2011 period. The bill also would require DOJ to prepare new
reports each year, in both classified and unclassified form, on
its use of certain investigative powers.
Based on information from DOJ and the intelligence
community, we expect that about two dozen people would be hired
to carry out the audits and prepare the reports. CBO estimates
that it would cost about $1 million in fiscal year 2011, $4
million in 2012, $3 million in 2013, and less than $500,000
annually thereafter to complete the audits and reports required
by the bill.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. By rescinding $5 million from the unobligated
balances of the Assets Forfeiture Fund, S. 193 would reduce
direct spending. The bill also could affect direct spending and
revenues through the collection and spending of civil and
criminal fines. The net changes in outlays and revenues that
are subject to those pay-as-you-go procedures are shown in the
following table.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR S. 193 AS REPORTED BY THE SENATE COMMITTEE ON THE JUDICIARY ON MARCH 17, 2011
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------------------------------------------------------
2011- 2011-
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2016 2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE OR DECREASE (-) IN THE DEFICIT
Statutory Pay-As-You-Go Impact.................. -1 -2 -2 0 0 0 0 0 0 0 0 -5 -5
Memorandum:
Changes in Outlays.......................... -1 -2 -2 0 0 0 0 0 0 0 0 -5 -5
Changes in Revenues......................... 0 0 0 0 0 0 0 0 0 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Intergovernmental and private-sector impact: CBO has
determined that the provisions of S. 193 are either excluded
from review for mandates under UMRA because they are necessary
for national security or they contain no intergovernmental or
private-sector mandates.
Estimate prepared by: Federal Costs: Mark Grabowicz (DOJ)
and Jason Wheelock (Intelligence Community); Impact on State,
Local, and Tribal Governments: Melissa Merrell; Impact on the
Private Sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy 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. 193, as reported, the
Department of Justice would be required to issue minimization
procedures on section 215 orders, and pen register and trap and
trace devices.
VI. Conclusion
The USA PATRIOT Act Sunset Extension Act of 2011, S. 193,
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 May 27, 2011, the Committee recommends swift action
on S. 193 as reported.
VII. Minority Views
----------
MINORITY VIEWS FROM SENATORS GRASSLEY, HATCH, KYL, SESSIONS, GRAHAM,
CORNYN, AND COBURN
Prior to September 11, 2001, government surveillance
authorities fell, broadly, into two categories: ordinary
domestic crime and foreign intelligence information collection.
A rigid divide between the two undermined the government's
ability to ``connect the dots'' in terrorism investigations
because it prevented domestic law enforcement officers from
collaborating with national security personnel. To protect
against future threats to our security, government
investigators needed more appropriate counterterrorism and
foreign intelligence tools. As a result, Congress enacted the
USA PATRIOT Act\4\ among other legislative responses.
---------------------------------------------------------------------------
\4\Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).
---------------------------------------------------------------------------
If Congress does not act in the coming weeks, three vital
national security tools to fight terrorism and prevent attacks
will expire.\5\ These provisions, section 206 of the USA
PATRIOT Act authorizing roving wiretaps, section 215 of the USA
PATRIOT Act regarding access to tangible things such as
business records, and section 6001 of the Intelligence Reform
and Terrorism Prevention Act, otherwise known as the ``lone
wolf'' provision, have previously been reauthorized and there
have been no reported abuses of these authorities.\6\ These
tools, established in the wake of the September 11th attacks,
have helped federal law enforcement and intelligence agencies
stay ahead of terrorists to prevent or thwart planned attacks.
---------------------------------------------------------------------------
\5\These provisions were set to expire at the February 28, 2011,
but Congress passed Pub. L. No. 112-3, 125 Stat. 5 (Feb. 25, 2011), a
short term extension which extends the provisions until May 27, 2011.
\6\U.S. Dep't of Justice, Office of the Inspector Gen., A Review of
the FBI's Use of Section 215 Orders for Business Records in 2006, at 5
March 2008 noting, ``We did not identify any illegal use of Section 215
authority.''
---------------------------------------------------------------------------
A key theme of these post-9/11 provisions was the
purposeful dismantling of the distinctions between criminal and
national security investigative tools. Congress believed then,
as we believe now, that an FBI agent investigating a potential
act of terrorism should have the same tools and authorities
available to an FBI agent investigating a drug offense. While
there are some distinctions that remain in place between
criminal and national security tools, the effort to have
greater parity among them has been largely successful. For
example, section 206 of the PATRIOT Act gives intelligence
agencies a capability that has been available to law
enforcement for decades. Unfortunately, S. 193 puts us back on
a path to a pre-9/11 mindset, in which arbitrary distinctions
between criminal and national security techniques were the
norm. This we cannot sanction.
On January 26, 2011, Senator Leahy introduced S. 193, the
USA PATRIOT Act Sunset Extension Act of 2011. This legislation
is similar to previous legislation he introduced that was
reported out of the Judiciary Committee (Committee) in the
111th Congress,\7\ but not considered on the Senate floor. S.
193 reauthorizes expiring provisions of the PATRIOT Act, but
with significant changes to existing national security law.
These changes would increase burdens on investigators, result
in delays--seldom experienced in domestic criminal matters--in
obtaining critical national security authorities, and drain
federal resources that should be focused on keeping the nation
safe. If S. 193 becomes law, national security investigators
will face greater procedural hurdles to using critical
surveillance tools--many of which have long been readily
available to law enforcement in run-of-the-mill criminal cases.
---------------------------------------------------------------------------
\7\The USA PATRIOT Act Sunset Extension Act of 2009, S. 1692, 111th
Cong. (2009).
---------------------------------------------------------------------------
S. 193 makes significant changes to the three expiring
provisions and other critical national security tools, despite
the fact that we currently face an ongoing and evolving
terrorist threat. For example, the General Counsel for the
Office of the Director of National Intelligence recently
testified before the House Judiciary Committee: ``The threat to
the Homeland from violent extremists is growing . . . the
nature of the terrorism threat that we face is evolving. Our
adversaries are constantly adapting their strategies and
communication techniques.''\8\ The Attorney General also
recently stated, ``The threat has changed from simply worrying
about foreigners coming here, to worrying about people in the
United States, American citizens--raised here, born here, and
who for whatever reason, have decided that they are going to
become radicalized and take up arms against the nation in which
they were born.''\9\ Federal Bureau of Investigation (FBI)
Director Mueller stated, ``Threats from homegrown terrorists
are also of great concern. These individuals are harder to
detect, easily able to connect with other extremists on the
Internet, and--in some instances--highly capable
operationally.''\10\
---------------------------------------------------------------------------
\8\USA PATRIOT Act Reauthorization: Hearing Before the Subcomm. On
Crime, Terrorism, and Homeland Security of the H. Comm. on the
Judiciary, 112th Cong. (March 9, 2011) (statement of Robert S. Litt,
General Counsel, Office of the Dir. Of Nat'l Intelligence).
\9\Good Morning America, Interview of Attorney General Eric H.
Holder, Jr. (ABC television broadcast Dec. 21, 2010).
\10\Federal Bureau of Investigation Director Robert S. Mueller,
III, Address at the 10th Annual Int'l Ass'n of Chiefs of Police
Conference Orlando, FL (Oct. 25, 2010).
---------------------------------------------------------------------------
We raise our concerns with S. 193 against this backdrop of
evolving terrorist threats, including the deadly shooting at
Fort Hood by Major Nidal Hassan, and recent attempted terrorist
attacks that fortunately were thwarted before any lives were
lost. Among the thwarted attacks: the February 2011 plot by
Khalid Ali-M Aldawsari in Lubbock, Texas, to utilize weapons of
mass destruction; the 2009 plot by Najibullah Zazi to bomb the
New York City subway; the failed bombing in Times Square by
Faisal Shahzad; the planned bombing of the Washington D.C.
Metro system by Farooque Ahmed; and the failed bombing of
Northwest Airlines Flight 253 on Christmas Day 2009 by Umar
Farouk Abdulmutallab. These thwarted attacks make clear that
our enemies have not rested since 9/11, but remain intent upon
causing us harm--including here at home. Because now is not the
time to be dialing back or raising the bar on any of our
national security tools, we agree with FBI Director Robert
Mueller's statement to the House Judiciary Committee on March
16, 2011 that we favor reauthorization of the three expiring
provisions as is.
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. These
legal tools were authorized in 2001, then renewed as part of
the PATRIOT Act reauthorization in 2005 and 2006, and then
again in December 2009. Three provisions are currently set to
expire on May 28, 2011. These three provisions are:
The ``roving wiretap'' provision, Section 206 of
the USA PATRIOT Act. This tool allows investigators to collect
evidence against terrorists in the same way that evidence is
collected against drug dealers in the criminal context, and
requires an initial finding of probable cause by the court.
Retaining the ability to maintain surveillance on terrorists
who are trained to evade detection is crucial, particularly in
the age of disposable cell phones, which terrorists are known
to use and frequently replace. The current authority already
sets forth a process for notification to the court when a
terrorist is tracked using roving authority. This process
enables agents to continue their investigation, without having
to file repetitious court applications every time a terrorist
changes phones. Like regular wiretaps, 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 tangible things, including
business records, in national security terrorism cases.
Examining business records often provides key information that
assists investigators in solving a wide range of crimes. In
criminal matters, similar records may be obtained using a grand
jury subpoena, without any need for court approval.
The ``lone wolf'' authority, Section 6001 of the
Intelligence Reform and Terrorism Prevention Act. This
authority allows intelligence investigations of terrorists who
cannot initially be connected to a foreign power or terrorist
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 so-called ``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.
All three of these authorities were previously reauthorized
by 89 Senators--including President Obama and Vice President
Biden when they were senators in 2006. Despite the fact that
these provisions have not been abused, S. 193 would continue to
include sunsets on these authorities and would make a host of
changes to other counter-terrorism and counter-intelligence
authorities that increase the burdens associated with utilizing
them.
S. 193 Unduly Expands Burdens on Expiring Provisions
Chief among our concerns are the increased requirements
that S. 193 would place on existing surveillance authorities.
The Foreign Intelligence Surveillance Act (FISA) is a precisely
worded statute where certain words have longstanding and
carefully crafted definitions that impact how those in the
intelligence community do their jobs. Adding words or phrases
to portions of FISA that are undefined or vague can have
serious and unintended consequences on those operating in the
field. Further, the FISA court already has the authority to
require additional documentation or data to support orders in
specific cases sought by the intelligence community. Changing
the statutory requirements, regardless of whether the Court is
already exercising its discretion by requiring such
information, will certainly impact how the Department of
Justice prepares applications before they are submitted to the
court.
Generally stated, we have serious concerns with how S. 193
would increase the burdens on law enforcement and intelligence
community personnel and create new divisions between criminal
and intelligence authorities--potentially rebuilding the
``wall'' between criminal and intelligence collection. We are
concerned that additional requirements will inherently slow
down the process for obtaining critical intelligence in early
stages of counter-intelligence and counter-terrorism
investigations. We offer the following details to support our
concerns.
1. Increases the Burden to Obtain Business Records from
Third Parties
Section 215 of the PATRIOT Act concerns the government's
ability to obtain business records from third parties, such as
banking information and car rental agreements. Under Supreme
Court precedent, business records, such as banking deposit
slips or car rental records are not subject to Fourth Amendment
protections because the customer has no reasonable expectation
of privacy in documents that are in the possession of third
parties.\11\ Because obtaining such records is not a search
under the Fourth Amendment, prosecutors in standard criminal
investigations can seek these types of records through the use
of a simple grand jury subpoena.
---------------------------------------------------------------------------
\11\U.S. v. Miller, 425 U.S. 435 (1976).
---------------------------------------------------------------------------
Under current law, however, investigators pursuing
terrorists and spies face the additional burden of seeking
court permission to obtain similar records. Other distinctions
also exist. A 215 order cannot be based solely on First
Amendment protected activities.\12\ Further, only three
specified, high-ranking federal officials have the authority to
request these orders in certain sensitive areas--such as
library records.\13\ Thus, under current law, this section puts
greater burdens on law enforcement in terrorism cases than
otherwise apply to standard criminal law enforcement.
---------------------------------------------------------------------------
\12\See 50 U.S.C. Sec. 1861(a)(2)(B) (2006).
\13\50 U.S.C. Sec. 1861(a)(3) (2006).
---------------------------------------------------------------------------
Despite the already more difficult process in the terrorism
context, S. 193 further increases the elements of proof needed
to obtain business records under Section 215. 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.\14\ Current law
also states that tangible things sought are presumptively
relevant if the government shows they pertain to (a) a foreign
power or 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.\15\ For reasons that
have yet to be fully explained, S. 193 removes the current
presumption of relevance.
---------------------------------------------------------------------------
\14\50 U.S.C. Sec. 1861(b)(2)(A) (2006).
\15\Id.
---------------------------------------------------------------------------
The presumption of relevance was included in Section 215
originally in order to prevent applications from turning into
full-blown FISA surveillance applications, which require
sufficient facts to support a finding of probable cause. Why is
this important? By removing the presumption, the court may
require officials to do additional investigation or provide
more facts before obtaining the business records order from the
court. This is problematic because section 215 authorities are
most often used at the beginning of an investigation--thus, the
simple relevance standard. At the beginning stages, it may be
impossible or unduly burdensome to get the extra required
information. As a result, this increased burden may
inadvertently cause a potential lead in a national security
investigation to be abandoned or critical terrorism links to be
ignored.
Similarly, the new proof language will also cause delays in
drafting applications as the government will no longer be able
to rely on the presumption of relevance. As noted below, the
215 application process already suffers from inexcusable
delays. Losing the presumption means the application itself
will also be longer, as more and more information must be
included. As we continue this fight against terrorism, we must
ask ourselves a fundamental question: do we want our
intelligence agents to spend more time doing paperwork or be
out tracking terrorists?
Even more troubling than the potential administrative
delays, the new proof language is amorphous and brand new in
the national security context. By establishing a FISA court in
the first place, Congress sought to create an environment in
which national security matters would be handled by a specific
pool of judges, thereby leading to greater certainty in how
national security matters would be resolved by the courts. By
injecting vague language into a statute that depends heavily on
its definitions, it is likely that judges will have very
different ideas about what constitutes ``justif[ication]'' of
the applicant's belief of relevance. Our national security
should not depend on an individual judge's interpretation of a
term that has no analogous use in the entire FISA statute.
Lengthier applications employing vague and new legal
standards will do nothing to improve the unreasonable delays in
obtaining section 215 orders that were identified by the
Department of Justice Inspector General in his March 2008
report. Remember, delays in acquiring basic information in a
terrorism investigation can result in the loss of intelligence,
connections, and criminals, as well as a failure to ``connect
the dots'' and prevent a terrorist attack. The 2008 Inspector
General audit of section 215 usage identified considerable
delays, up to several months, for processing routine business
records applications in the Department of Justice. Given that
it takes only hours to ordinarily obtain a grand jury subpoena,
delays of this length are already unacceptable and must be
addressed by the Department of Justice. It is likely, however,
that this new amorphous language--rather than the clear, and
well-understood, relevance standard--will simply worsen the
problem.
2. Increases the Burden to Obtain Library Records from
Third Parties
Despite the special exceptions and standards that already
exist for obtaining library records under a section 215 court
order,\16\ S. 193 increases the standard to obtain library
records that contain personally identifiable information about
a library patron. Under S. 193, the government would have to
present a statement of facts showing reasonable grounds to
believe that 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 of a foreign power, or
(c) an individual in contact with, or known to, a suspected
agent of a foreign power subject to an authorized
investigation. So, if the government could convince a court
that there were reasonable grounds to believe that the business
records sought were relevant to an authorized investigation,
and if the government failed to show the involvement of a
specific agent of a foreign power, then it would not be able to
get the records. Such a requirement could disable the
government from using a section 215 order at the early stages
of an investigation, when such an order is most useful, simply
because the government could not establish that the individual
in question was an agent of a foreign power. Imposing this new
requirement is an open invitation to terrorists to use
unsuspecting third parties to communicate with associates on
their behalf.
---------------------------------------------------------------------------
\16\See 50 U.S.C. Sec. 1861(a)(3) (2006).
---------------------------------------------------------------------------
No special ``library record'' exception exists in the
criminal law context. In fact, criminal investigators can
obtain these records, without a court order, by obtaining a
grand jury subpoena through a federal prosecutor. In the
national security context, there is a special exception plus
court authorization, both designed to protect civil liberties.
In an interesting side note, the Department of Justice has
pointed out that many libraries already take measures to inform
their patrons that all records are erased every night to limit
the disclosure of this information.
Enacting a separate and noticeably more stringent standard
for library records will simply encourage terrorists to use
library networks--either on their own or through unwitting
third parties--to communicate with each other. It should come
as no surprise that because of the heightened standards
contained in the Leahy bill, it may be difficult for the
national security investigators to quickly track such
terrorists' usage of library computers.
3. For the First Time--Court Review of Business Records
Minimization
S. 193 also requires FISA Court review of minimization
procedures. Currently, section 215 requires that an application
by the government include ``an enumeration of the minimization
procedures adopted'' for business record orders. S. 193 would
take this a step further and authorize the FISA Court to review
and direct the government to follow the minimization
procedures.
This additional requirement could lead to differing
minimization requirements on each 215 order issued. It raises
questions about how the FISA Court will view this new authority
to direct the government to comply with minimization. Will the
FISA Court require additional documentation, reporting, or
other compliance measures under this new provision? How in
depth will each federal judge require the minimization? This
could lead to potential confusion among operational entities as
they are ordered to impose different minimization procedures on
essentially the same information within the same office because
different judges proposed different minimization procedures.
This could lead to operational uncertainty within offices
hindering the ability to utilize leads obtained as a result of
section 215 orders. Further, it poses potential compliance
problems for offices that confuse minimization procedures among
different collections of section 215 derived information
resulting in potential sanctions on the government
investigators by a federal judge or inspector general.
4. Immediate and Unlimited Judicial Review of Nondisclosure
Orders
S. 193 allows recipients of section 215 orders and National
Security Letters (NSLs) to challenge a nondisclosure
requirement immediately and without end. This will require
tasking investigative agencies and Department lawyers with
defending nondisclosure orders much more often, possibly from
the earliest moments of the investigation. In addition, since
there is no limit, the recipient can challenge a non-disclosure
order repeatedly until he succeeds. In most national security
investigations, the ability to rule-in or rule-out certain
information as being relevant to an investigation increases
with time, as more facts are learned. Early in an
investigation, it is not always readily apparent that a
particular number that is the subject of a particular NSL is no
longer relevant or that its disclosure will not cause any harm.
This provision raises the risk that the FBI will be compelled
to disclose the existence of an NSL or section 215 order,
simply because the necessity for secrecy is often not provable
until some time has elapsed, and the true value of the material
becomes clear.
S. 193 Expands Burdens on Other Tools
On top of the additional restrictions S. 193 places on the
expiring provisions, S. 193 alters three other criminal and
intelligence tools that are not subject to sunset: FISA pen
registers and trap and trace devices, NSLs, and delayed notice
search warrants.
1. FISA Pen Registers/Trap and Trace Devices
A. Raises the Standard for FISA Pen Registers/Trap and
Trace Devices
Pen registers (which retain a list of phone numbers called)
and trap and trace devices (which catalogue a list of received
calls) have long been used by law enforcement to obtain
telephone transaction records. These devices do not capture the
content of communications, just the source or destination of
calls.\17\ The Supreme Court has held that pen registers do not
constitute a search under the Fourth Amendment and do not
require a warrant because the individual ``voluntarily conveyed
numerical information to the telephone company.''\18\ Current
law allows law enforcement to obtain pen registers and trap and
trace devices from a judge under both criminal law and foreign
intelligence surveillance law.\19\ The standard to obtain pen
registers and trap and trace devices is currently the same in
these areas: that the information likely to be obtained is
relevant.\20\
---------------------------------------------------------------------------
\17\Smith v. Maryland, 442 U.S. 735 (1979).
\18\Id.
\19\Compare 18 U.S.C. Sec. 3122 (2006), with 50 U.S.C. Sec. 1842
(2006).
\20\Compare 18 U.S.C. Sec. 3122(b)(2) (2006), with 50 U.S.C.
Sec. 1842(c)(2) (2006).
---------------------------------------------------------------------------
S. 193 would impose, for the first time ever, a higher
requirement in the national security area, requiring the
government's application to include ``a statement of the facts
and circumstances relied upon by the applicant to justify the
belief of the applicant.''\21\ This new requirement replaces
the current certification of relevance which has guided the use
of FISA pen registers since their inception, and which mirrors
the standard practice used in criminal investigations. As with
many of the other tools impacted by the Leahy bill, pen
registers are building blocks of an investigation. The simple
requirement to certify the relevance of the information
reflects the fact that early in an investigation, there may not
be large amounts of information known or available to
intelligence agents. For this reason, content may not be
obtained through a pen register. This change in S. 193 destroys
the parity between criminal and national security pen
registers. Interestingly, it also creates the dynamic in which
a spy, terrorist, or non-U.S. person could actually be given
more protections than a U.S. person being investigated for an
ordinary crime. This is a seismic shift in current law and
sends the wrong signal to our agents in the field, by conveying
that they must jump through more hoops in order to catch
terrorists than ordinary criminals. Further, by making it more
difficult for investigators to obtain pen registers in the
counter-intelligence and counter-terrorism field than compared
to traditional criminal law, it is a step further toward
reconstituting the ``wall'' between criminal and national
security investigations that the 9/11 Commission criticized,
and the Committee followed through in knocking down.
---------------------------------------------------------------------------
\21\USA PATRIOT Act Sunset Extension Act of 2011, S. 193, 112th
Cong. Sec. 4 (2011).
---------------------------------------------------------------------------
B. Pen Register/Trap and Trace Minimization Required
S. 193 imposes a new requirement for minimization
procedures to be applied to information obtained from FISA pen
registers. Minimization is a concept ordinarily applied to the
content of communications. This requirement raises questions
about how minimization of non-content information is to be
accomplished; what privacy interests are involved that may
require minimization; and why this provision is even necessary.
While proponents of S. 193 have claimed that they do not expect
many substantive changes to current practice, it is highly
likely that the FISA Court will interpret any change in law to
mean that more procedures are necessary. This interpretation
will lead to considerable operational confusion as both the
court and agents/analysts struggle to apply minimization
procedures, designed to protect U.S. person information, to
data that is not readily identifiable as being U.S. person
information. The irony is that imposing these procedures on
dialing data, for example, will require that the FBI actually
take a closer look at each number dialed to determine whether
or not that number belongs to a U.S. person, effectively
requiring agents to make an inquiry more invasive than current
practice.
2. National Security Letters
A. Raises the Standard for Issuing a National Security
Letter
S. 193 imposes a new requirement on investigators who wish
to utilize NSLs, in effect making it even more difficult for
federal authorities to investigate national security threats
than to pursue common crimes like health care fraud, mail
fraud, and tax evasion. Under S. 193, in addition to certifying
relevance to a terrorist or intelligence investigation,
investigators would also have to show ``specific facts showing
that there are reasonable grounds to believe that the
information sought is relevant.''\22\ Such a standard is both
vague and possibly difficult to meet in the early stages of
investigation when NSLs are most useful.
---------------------------------------------------------------------------
\22\Id. at Sec. 7 (2011).
---------------------------------------------------------------------------
This statement of ``specific facts'' is a holdover from
negotiations following the Committee mark-up of S. 1692 in the
last Congress. That bill originally included a provision
requiring a ``statement of specific and articulable facts.''
There was a debate surrounding this requirement and ultimately
the term ``articulable'' was dropped. However, there was no
further debate about what is, and is not, a ``specific'' fact.
Absent a definition of what makes a fact ``specific'', this
new requirement has the potential to create confusion and
compliance issues within the FBI. The cannons of statutory
construction instruct judges that words in a statute have
meanings, and that adding or removing words will have
consequences in how those judges interpret the statute.
Director Mueller agreed with this principle when he stated on
March 16, 2011 that adding a new word to a statute can cause
confusion and can put it ``into a different ballpark.''
This new standard could cause operational problems as well.
For example, prior to 9/11 there was significant confusion
about what was necessary to establish probable cause to obtain
a FISA warrant to search the belongings of Zacharias Moussaoui,
the ``20th hijacker'' on 9/11. FBI Special Agent Colleen Rowley
testified before this Committee in 2002 about the threshold
necessary to establish probable cause. That testimony
highlighted problems within the FBI in determining what
standard applied to find probable cause. If the FBI had such a
hard time determining what ``probable cause'' was, a basic
standard in criminal investigations, how is the FBI going to
interpret an undefined term like ``specific'', or will they
experience the same paralyzing confusion with NSLs?
Further, this undefined requirement could lead to
compliance problems with the Inspector General. Under current
law, NSLs may be approved by a Special Agent in Charge of a FBI
field office.\23\ What if the Special Agent in Charge of the
FBI's Chicago Field Office has a different opinion of what
constitutes a ``specific'' fact than the Special Agent in
Charge of the FBI's Miami Field Office? When the Inspector
General for the Department of Justice starts auditing the
issuance of National Security Letters, how do we know the
Inspector General will not have a different idea of what
``specific'' means? It is entirely possible that the Inspector
General and the FBI could have different definitions of what
demonstrates a ``specific'' fact. FBI Director Mueller stated
as much on March 16, 2011, when he said that there is a
possibility that the Inspector General may have a different
interpretation of whether specific facts were specific enough.
This term, absent a definition, could unnecessarily cause
confusion for the FBI in trying to figure out the difference
between what constitutes a ``specific'' fact and what is just a
fact.
---------------------------------------------------------------------------
\23\See 18 U.S.C. Sec. 2709(b) (2006).
---------------------------------------------------------------------------
B. Adds a new Sunset of National Security Letters
NSLs are a valuable tool and have provided investigators
and analysts with critical information. 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.'' 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.''' 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.''\24\
---------------------------------------------------------------------------
\24\Hearing on: The Inspector General's Independent Report on the
F.B.I.'s Use of National Security Letters: Hearing Before H. Comm. on
the Judiciary, 110th Cong. (March 20, 2007) (statement of FBI General
Counsel Valerie E. Caproni).
---------------------------------------------------------------------------
S. 193 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.
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 administrative or
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 protection 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 FBI and Department of Justice have
responded to these findings and taken action to ensure that
they are not repeated. 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.'' What is puzzling is
that the supposed remedy in S. 193--sunsetting the NSL standard
to pre-September 11, 2001--generally has no relationship
whatsoever to the deficiencies related to NSLs found by the
Inspector General. In support, FBI Director Mueller
affirmatively stated on March 16, 2011, that he is against a
sunset for NSLs and does not support reverting to pre-9/11
standards.\25\
---------------------------------------------------------------------------
\25\Oversight Hearing on the Federal Bureau of Investigation:
Before the H. Comm. on the Judiciary, 112th Cong. (2011) (response to
Member questions by FBI Director Robert S. Mueller, III).
---------------------------------------------------------------------------
3. Shorter Time for Use of Delayed Notice Search Warrants
Delayed notice search warrants, well-accepted criminal
investigative tools, allow investigators who have a court order
to search a property without immediately informing the
suspect.\26\ S. 193 would dramatically and arbitrarily cut the
time by which investigators must inform the suspect from 30
days to 7 days--less than a quarter of the time allowed under
current law. In this instance, it would place this new burden
on both national security and criminal investigations.
---------------------------------------------------------------------------
\26\See 18 U.S.C. Sec. 3103a (2006).
---------------------------------------------------------------------------
While it is true that applicants for a delayed notice
search warrant may apply for an extension, up to 90 days or
less, unless the facts of the case justify a longer delay, this
requirement effectively takes law enforcement agents off the
street in order to complete the required paperwork seeking the
extension. 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, and in some cases,
before they have even had an opportunity to examine the
material obtained. Investigators should be spending their time
bringing offenders to justice, not at the courthouse deluging
courts with unnecessary paperwork. It is also likely that
courts will interpret this reduction by Congress as indicating
that Congress frowns on delays of 30 days or more. This
interpretation will make it harder for the government to obtain
extensions beyond 30 days, much less up to 90. FBI Director
Mueller stated that the 30-day delayed notice limitation works
well and that there is no advantage to going back to 7
days.\27\
---------------------------------------------------------------------------
\27\Oversight Hearing on the Federal Bureau of Investigation, supra
note 22.
---------------------------------------------------------------------------
Additional Problems Created by Amendments Adopted
As part of the Committee's considerations of S. 193,
Senators Leahy and Durbin offered amendments that further
decrease the value and usefulness of critical national security
tools. The Committee first adopted an amendment offered by
Senator Leahy that would expand the list of business records
that required additional scrutiny by the FISA court to include
``bookseller records''.
1. Leahy Amendment Regarding ``Bookseller Records''
Currently, section 215 of the PATRIOT Act authorizes a
national security investigator to make an application to the
FISA Court for an order to require the production of ``tangible
things'' including books, records, papers, documents, and other
items. There are certain requirements that this application
must satisfy and current applications can be quite lengthy.
There is often a considerable delay, between three to six
months, in obtaining a 215 order because of the multiple layers
of review and approval a request goes through.
For the first time, the 2005 reauthorization of the PATRIOT
Act created additional requirements for obtaining library
circulation records, library patrol lists, book sales records,
book customer lists, and certain other records (medical,
firearm, and tax records). The 2005 amendment requires the FBI
Director, or a high level designee, to approve the request
before a court order is sought, as well as mandating specific
congressional reporting. In contrast, library records can be
obtained in criminal investigations with a grand jury subpoena,
which does not require FBI Director approval or a court order.
In addition to the current carve-out for library and other
records in the 2005 reauthorization, and the additional burdens
to obtain library records contained in S. 193, this amendment
further restricts national security investigators by expanding
the exception to include ``bookseller records.'' This amendment
increases the burden on the government when obtaining business
records from booksellers by putting commercial booksellers on
the same level as public libraries.
The amendment defines bookseller records to include records
reflecting the purchase or rental of ``books, journals, or
magazines, whether in digital form or in print.'' Exempting
these records is problematic and creates an easily exploitable
loophole for terrorists. Specifically, the amendment states
that if the records sought contain bookseller records, the
entire request rises to the new additional requirements. This
special exception advertises to terrorists that they can
increase the work of law enforcement simply by buying a book,
or even better, obstruct investigators from even finding out
about their activities by buying a magazine.
The recent arrest in Texas of Khalid Aldawsari highlights
the severe limitations this amendment would put on law
enforcement to prevent a terrorist attack. Aldawsari is a Saudi
national who was attending college in Texas on a student visa.
He was recently arrested and indicted for attempting to use a
weapon of mass destruction. Fortunately, federal agents were
able to prevent the terrorist attack, instead of cleaning up
after it. To prevent this massive attack, an order was obtained
under the section 215 business record authority, as confirmed
by Robert S. Litt, General Counsel for the Director of National
Intelligence.\28\
---------------------------------------------------------------------------
\28\USA PATRIOT Act Reauthorization, supra note 5.
---------------------------------------------------------------------------
If the ``bookseller records'' amendment were the law this
month when Aldawsari was investigated and arrested, it is
possible that evidence of his bomb-making would not be
obtainable with a section 215 order. According to the affidavit
supporting the arrest of Aldawsari, he obtained many of the
materials needed to build his weapon of mass destruction
through online retailer Amazon.com--a bookseller. Through the
use of a section 215 order, the FBI learned that this
bookseller had records that include items Aldawsari purchased
to build his bomb, including:
three gallons of concentrated sulfuric acid;
soldering iron;
Christmas lights (wire for explosives and
electronic circuits for improvised explosive devices);
3.2 million volt Stun Gun with built in
flashlight;
battery tester;
alarm clock;
precision screw driver set;
chemistry flask;
chemistry laboratory equipment set; and
narrow mouth flask and 12" glass stirring
rod.\29\
---------------------------------------------------------------------------
\29\Federal Bureau of Investigation Aff. in Support of Criminal
Complaint and Arrest Warrant for Khalid Aldawsari (February 23, 2011).
---------------------------------------------------------------------------
These tangible things purchased are not books, journals, or
magazines. They are components for making bombs. This amendment
would essentially make online booksellers a refuge for
terrorists, allowing them to acquire all their bomb-making
supplies, while investigators are further handcuffed by the
increased standards to obtain records from a third party. If
this amendment had been the law, records about all of these
purchases may have been held to the heightened standard as it
is unclear how the FISA Court would treat an application for
these records, merely because they came from a bookseller.
Taken a step further, if Aldawsari had simply purchased a book
with these items, it would have automatically triggered the
heightened standard because the request would now include
``bookseller records'' as defined by the Leahy amendment.
As a practical matter, how would the investigators know if
the records they were seeking included a book? It is likely
that early in an investigation, government agents would not
know exactly what type of products were purchased and what
records a 215 order will produce. For example, what if
investigators knew Aldawsari was purchasing items from
Amazon.com, but did not know what he was purchasing? Would the
FISA Court automatically apply the heightened standard simply
because Amazon.com is an online bookseller and FBI agents were
unclear if the request would return ``bookseller records''?
It is inconsistent for Congress to applaud the good work of
investigators in preventing Aldawsari's terrorist attack while
simultaneously creating laws that preclude investigators from
utilizing those same tools when attempting to prevent the next
attempted terrorist attack. By increasing the burdens required
to obtain a section 215 order for both library and bookseller
records, the application of this valuable tool could be
rendered less effective in future investigations.
Aldawsari made other purchases from retailers that could be
considered booksellers. For example, he made purchases from
online retailer eBay, including a ``Hazmat Suit Tychem BR
Chemical Protective Clothing'' and he failed to win an online
auction for a ``US M42 Gas Mask''.\30\ The tangible things
Aldawsari purchased are not books, journals, or magazines. They
are components for making bombs and protective gear from those
hazardous materials. This amendment would essentially make
online booksellers a refuge for terrorists, allowing them to
acquire all of their bomb-making supplies, while investigators
are further handcuffed by the increased standards to obtain
records from a third party.
---------------------------------------------------------------------------
\30\Id.
---------------------------------------------------------------------------
The Inspector General for the Department of Justice has
already reported that FBI agents encountered processing delays
for section 215 applications--averaging 147 days.\31\ 147 days
is an eternity in fast-moving operational situations. Adding
new requirements, as the Leahy bill and amendment would do for
libraries and booksellers, will only extend that delay.
Ironically, these same records, potentially protected by the
``bookseller records'' amendment, are available in a matter of
hours under a criminal grand jury subpoena. But in national
security investigations, a grand jury subpoena is infrequently
an option due to the need to keep national security concerns
and interests classified.
---------------------------------------------------------------------------
\31\U.S. Dep't of Justice, Office of the Inspector Gen., supra note
3.
---------------------------------------------------------------------------
2. Durbin Amendment Regarding John Doe Roving Wiretaps
Senator Durbin offered an amendment that was adopted by the
Committee. His amendment inserted a particularity requirement
into one of the specifications that must be made in a FISA
electronic surveillance court order whenever the identity of
the target of surveillance is not known. The stated purpose of
the Durbin amendment was to require particularity for ``John
Doe'' roving wiretaps. Unfortunately, this purpose was little
more than a solution in search of a nonexistent problem.
Under current law, FISA allows the issuance of a wiretap
against an individual in situations where the identity of the
individual may not be known, but the government can describe
the surveillance target sufficiently to establish probable
cause that he is an agent of a foreign power; this is a form of
surveillance that has been labeled as a ``John Doe'' wiretap or
search in the criminal context.
A challenge separate and distinct from the ``John Doe''
issue is presented when a surveillance target is taking
measures to evade electronic surveillance. In such cases,
section 206 of the USA PATRIOT Act allows the government to
seek a ``roving'' court order when it can show that an
individual is taking actions to ``thwart'' surveillance.\32\
This roving order allows the government to continue its
surveillance of the target as he switches from communication
device to communication device without having to go back to the
Foreign Intelligence Surveillance Court for a new court order.
Unlike the ``John Doe'' situation where the identity of the
target is not known, the problem in the roving context is that
the government is initially unable to identify the
communications facilities that the target is using now or in
the future. Under section 105(c)(1)(B), the government may
still obtain a FISA warrant when the facilities cannot be
identified initially; however, in these situations, the
government is required to provide notice to the Foreign
Intelligence Surveillance Court within ten days after the date
on which surveillance is initiated against any new facility or
place.\33\ This notice requirement is applicable in all
``roving'' situations.
---------------------------------------------------------------------------
\32\50 U.S.C. Sec. 1805(c)(2)(B) (2006).
\33\50 U.S.C. Sec. 1805(c)(3) (2006).
---------------------------------------------------------------------------
Given these requirements for a roving wiretap court order,
it is difficult to envision a real-life situation in which the
government could successfully demonstrate that the target of
the surveillance is attempting to evade surveillance without
knowing the actual identity of the target--hence, the
nonexistent problem of the ``John Doe'' roving wiretap
``solution.'' Regardless, if the Durbin amendment was truly
intended to amend FISA roving authority, then it should have
amended the text in section 105(c)(2)(B)\34\ where the roving
authority is actually found. Instead, the Durbin amendment
modified section 105(c)(1)(A)\35\ which applies to all FISA
electronic surveillance orders. If the Durbin amendment were to
become law, the government would be required to describe the
target with particularity in situations in which the identity
of the target is unknown. This injects a new level of
uncertainty into the FISA application and court order process
as the Department of Justice and the Foreign Intelligence
Surveillance Court attempt to interpret the effect and meaning
of this new requirement. It is reasonable to assume that the
Foreign Intelligence Surveillance Court will interpret this
``particularity'' standard to require a greater factual showing
than is required under the present ``description'' standard.
This could result in a delay or interruption of real-world
intelligence operations and a corresponding loss of potential
foreign intelligence information. Unlike the underlying Leahy
bill, which the administration has at least grudgingly stated
it ``could live with,'' this Durbin amendment was not vetted
with the Intelligence Community or the Department of Justice.
---------------------------------------------------------------------------
\34\50 U.S.C. Sec. 1805(c)(2)(B) (2006).
\35\50 U.S.C. Sec. 1805(c)(1)(A) (2006).
---------------------------------------------------------------------------
There has never been any allegation of abuse with respect
to the use of the FISA ``if known'' standard in section
105(c)(1)(A). The provision has been working well since FISA's
original enactment in 1978. In these limited situations in
which the target's identity is unknown, the government is still
required to provide, and the court must specify, a description
of the target that satisfies the agent of a foreign power
probable cause standard. The Constitutional ``particularity''
requirement is designed to prevent the use of a ``general''
warrant and to limit the scope of an actual physical search,
e.g., if the warrant authorizes law enforcement to search for
stolen televisions, then they are not permitted to search in
desk drawers. The requirement for a ``description'' of the
surveillance target prevents the FISA court order from becoming
a general warrant and provides enough information to ensure
that surveillance is conducted against the intended target.
It is important to remember that all FISA wiretaps, even
John Doe and roving wiretaps, are ordered by a judge after the
Attorney General has approved the request and the court has
found probable cause that the surveillance target in question
is a foreign power or an agent of a foreign power. The concept
of a ``John Doe roving wiretap'' appears to be little more than
a theoretical joining of two distinct statutory requirements in
a combination not reflected by the reality of actual
intelligence operations. This amendment, either as intended or
drafted, is simply a solution in search of a problem.
3. Whitehouse Amendment Striking ``and articulable''
Under current law, the government is only required to
certify that records sought from a National Security Letter are
relevant to an ongoing investigation. S. 193 would raise the
standard for obtaining a National Security Letter by requiring
the government to retain a written statement of ``specific
facts showing that there are reasonable grounds to believe that
the information sought is relevant to the authorized
investigation.''
One section of S. 193 retained a version of this language
that was a holdover from last Congress, requiring a ``statement
of specific and articulable facts'' for an application for a
nondisclosure order accompanying a NSL. The ``specific and
articulable'' standards was included in S. 1692 during the
previous Congress.\36\ Subsequent negotiations modified this
language to ``specific facts'' as incorporated into S. 193. As
such, Senator Whitehouse's amendment was adopted by a voice
vote. While we agree with the inclusion of this amendment for
consistency in the bill, we disagree with the final language
that now requires a statement of ``specific facts''.
---------------------------------------------------------------------------
\36\The USA PATRIOT Act Sunset Extension Act of 2009, supra note 4.
---------------------------------------------------------------------------
Conclusion
Following September 11, 2001, Congress took steps to ensure
that national security investigators had access to tools
analogous to those long available to criminal investigators.
The FBI has stated repeatedly that these tools have been
critical in keeping the nation safe in the years since. Those
who seek to weaken the tools currently available to our law
enforcement and intelligence agencies must make the case that
the existing law is unnecessary, counterproductive, or has been
abused. No such case has been made. The Senate should act to
make sure our law enforcement and intelligence professionals
have the tools they need to stop those threats to our national
security at every turn.
Despite the Majority's view that the classified member
briefing revealed that S. 193 ``poses no operational
concerns,'' the Administration's stance has been only that they
can ``live with'' the changes contained in S. 193. Being able
to ``live with'' something is far different than having no
concerns or supporting it. Interestingly, we have yet to hear
anyone in the Administration say that S. 193 will actually help
them keep this country safe. Moreover, the non-partisan members
of the Federal Law Enforcement Agents Association, who operate
independently of political considerations, oppose changes to
the PATRIOT Act and said: ``We would caution the Congress to be
careful when trying to re-work any provisions that have already
been in effect and have been effective.''\37\ While the
Administration may be able to ``live with'' the changes
contained in S. 193, we are concerned that in legislating
distinct differences between national security and criminal
laws this Committee is headed down a path that would rebuild
the wall between national security and criminal cases. We all
remember the tragic events of 9/11 and the serious work in
Congress to implement the 9/11 Commission recommendations and
tear down the wall between national security and criminal
cases.
---------------------------------------------------------------------------
\37\Letter from Jon Adler, National President, Federal Law
Enforcement Officers Association, to Senator Patrick Leahy and Senator
Charles Grassley, Senate Committee on the Judiciary (March 2, 2011) (on
file with minority staff).
---------------------------------------------------------------------------
We continue to face threats from terrorists that originate
abroad and at home. We have heard of no abuses of the existing
authorities set to expire, but yet this legislation imposes a
new set of burdens on law enforcement and national security
investigators. Limiting the important investigative tools that
have helped to thwart numerous terrorist attacks, by
unnecessarily adding conditions to their already highly-
regulated use, is a short-sighted strategy. As recent arrests
and indictments demonstrate, these vital tools are being used
responsibly and wisely by law enforcement and intelligence
professionals 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 vigorously oppose the changes contained in S. 193 and,
should it come before the full Senate, we will offer a number
of amendments to limit the damage it would cause to critical
national security and criminal law tools. Absent significant
amendments to correct the problems we have highlighted, the
Senate should reject S. 193 and extend the PATRIOT ACT without
changes to current law.
Charles E. Grassley.
Orrin G. Hatch.
Jon Kyl.
Jeff Sessions.
Lindsey Graham.
John Cornyn.
Tom Coburn.
ADDITIONAL MINORITY VIEWS FROM SENATORS GRASSLEY, HATCH, KYL, SESSIONS,
GRAHAM, AND CORNYN
Expiring Provisions Should Be Made Permanent
On January 28, 2011, Attorney General Eric Holder and
Director of National Intelligence James Clapper wrote to
Speaker of the House Boehner, Majority Leader Reid, Minority
Leader Pelosi, and Minority Leader McConnell. In that letter,
Attorney General Holder and Director Clapper wrote, ``In the
current threat environment, it is imperative that our
intelligence and law enforcement agencies have the tools they
need to protect our national security.''\1\ The letter goes on
to describe the importance of the three expiring provisions,
including section 206 of the USA PATRIOT Act providing
authority for roving surveillance, section 215 providing
authority to compel production of business records and other
tangible things, and section 6001 of the Intelligence Reform
and Terrorism Prevention Act, otherwise known as the ``lone
wolf'' provision, authorizing use of the Foreign Intelligence
Surveillance Act (FISA) to target non-U.S. persons engaging in
terrorism who are not associated with an identified terrorist
group. The authors add, ``It is essential that these
intelligence tools be reauthorized before they expire, and we
are committed to working with Congress to ensure the speedy
enactment of legislation to achieve this result.''\2\
---------------------------------------------------------------------------
\1\Letter from Director of National Intelligence James R. Clapper
and Attorney General Eric Holder to House Speaker John Boehner, Senate
Majority Leader Harry Reid, House Minority Leader Nancy Pelosi, and
Senate Minority Leader McConnell (Jan. 28, 2011) (on file with minority
staff).
\2\Id. (emphasis in original).
---------------------------------------------------------------------------
In addition to this statement, where the emphasis was noted
by the authors, they continued, ``We also urge Congress to
grant a reauthorization of sufficient duration to provide those
charged with protecting our nation with the reasonable
certainty and predictability. When Congress originally enacted
the PATRIOT Act, it included a three-year sunset on these
authorities. While we welcome Congressional oversight into the
use of these tools, Congress did not contemplate that this
sunset would devolve into a series of short-term extensions
that increase the uncertainties borne by our intelligence and
law enforcement agencies in carrying out their missions.''\3\
Despite this clear statement in support of reauthorizing the
expiring authorities, we are now, two months later, addressing
yet another short term extension extending the PATRIOT Act
provisions set to expire now on May 27, 2011.\4\
---------------------------------------------------------------------------
\3\Id.
\4\FISA Sunsets Extension Act of 2011, Pub. L. No. 112-3, 125 Stat.
5 (2011).
---------------------------------------------------------------------------
Notwithstanding the calls from the Attorney General and
Director Clapper, S. 193 would simply extend the expiring
provisions until December 2013, just 33 months from now. By
extending the three provisions for a short term, albeit nearly
three years, Congress fails to provide needed certainty to law
enforcement and counterterrorism officials. In fact, Director
of the Federal Bureau of Investigation (FBI) Robert Mueller III
testified before the Senate Select Committee on Intelligence on
February 16, 2011, that the expiring provisions were critical
to ongoing investigations and should be permanently
reauthorized.\5\ Similarly, the Federal Law Enforcement
Officers Association (FLEOA), a non-profit law enforcement
association representing over 26,000 federal law enforcement
officers, wrote to Senate Minority Leader McConnell on February
7, 2011, supporting ``legislation that seeks to incorporate a
long-term solution to the USA PATRIOT Act's problematic
recurring expiration date.''\6\ The letter added, ``Crime and
terrorism will not ``sunset'' and terrorists don't need any
``extension'' to continue their heinous activities. Just like
handcuffs, this tool should be a permanent part of the law
enforcement arsenal. Arguments to the contrary are flawed and
don't recognize the reality that the Act has been judiciously
used and has kept Americans safe . . . Terrorists don't
``sunset'' and the tools needed to stop them shouldn't
either.''\7\ A subsequent letter from FLEOA to members of the
Judiciary Committee dated March 2, 2011, added, ``We would
caution the Congress to be careful when trying to re-work any
provisions that have already been in effect and have been
effective. Additionally, the short-term authorization is at
odds with a Congress that in the aftermath of September 11th,
2001 attacks asked ``Why didn't we know and connect the dots?
The USA PATRIOT Act removed some of the barriers in place that
prevented us from ``connecting the dots'' and any retraction of
those provisions is in effect, ``re-building the wall.''\8\
---------------------------------------------------------------------------
\5\Chris Strohm, PATRIOT Act Extension Enters Home Stretch, NAT'L
JOURNAL, Feb. 16, 2011, available at http://www.nationaljournal.com/
nationalsecurity/patriot-act-extension-
enters-home-stretch-20110216?mrefid=site_search.
\6\Letter from Jon Adler, National President, Federal Law
Enforcement Officers Association, to Minority Leader Mitch McConnell,
United States Senate (Feb. 7, 2011) (on file with minority staff).
\7\Id.
\8\Letter from Jon Adler, National President, Federal Law
Enforcement Officers Association, to Senator Patrick Leahy and Senator
Charles Grassley, Senate Committee on the Judiciary (March 2, 2011) (on
file with minority staff).
---------------------------------------------------------------------------
We wholeheartedly agree with FLEOA and the federal agents
on the ground that the organization represents. The terrorist
threat is not going away anytime soon and efforts to
continually renew these provisions on an ad hoc basis provide
little, if any, operational certainty to agents in the field.
Continuing to temporarily postpone sunsets of these
critical national security tools runs the risk that eventually
the sunsets will be allowed to lapse, causing operational
problems. Further, in continually reauthorizing these expiring
sunsets, we in Congress continue to amend the provisions making
them more difficult to use with so many requirements that they
become unduly burdensome and functionally useless. Despite
erroneous statements to the contrary, the three expiring
provisions have not been the subject of abuse. In the case of
section 215 orders, the Inspector General of the Department of
Justice has twice reviewed the use of the authority and ``did
not identify any illegal use of Section 215 authority.''\9\ In
fact, Section 215 orders are crucial to the early stages of a
terrorism investigation, allowing the government to obtain
information at an early investigative stage, helping to connect
dots. This vital tool has become a staple of counterterrorism
efforts, with investigators utilizing this authority 223 times
between 2004 and 2007.\10\ FBI Director Mueller has called this
tool ``exceptionally helpful and useful in our national
security investigations.''\11\
---------------------------------------------------------------------------
\9\Office of the Inspector Gen., U.S. Dep't of Justice, A Review of
the FBI's Use of Section 215 Orders for Business Records in 2006 at 5
(March 2008) (emphasis added).
\10\Oversight of the Federal Bureau of Investigation: Hearing
Before the S. Comm. On the Judiciary, 111th Cong. 24 (statement of
Robert S. Mueller, III, Dir. Fed. Bureau of Investigation).
\11\Id.
---------------------------------------------------------------------------
Similarly, section 6001 of the Intelligence Reform and
Terrorism Protection Act, known as the ``lone wolf'' provision,
has not ever been used, much less abused. However, the absence
of utilization does not provide support as some have argued to
call for its expiration. For example, FBI Director Mueller,
Secretary of Homeland Security Napolitano, and Attorney General
Holder have all raised concerns that the current threat
environment has evolved with the development and proliferation
of self-radicalized, home grown terrorists. This is precisely
the scenario the lone wolf provision was designed to help
thwart. In fact, a September 14, 2009, letter from Assistant
Attorney General Ron Weich stated, ``the prospect of a
terrorist who `self-radicalizes' by means of information and
training provided by a variety of international terrorist
groups via the internet''\12\ is one possible scenario the lone
wolf provision would help protect against.
---------------------------------------------------------------------------
\12\Letter from Assistant Attorney Gen. Ron Weich, U.S. Dep't of
Justice, to Senator Patrick Leahy, Chairman, Sen. Comm. on the
Judiciary (Sept. 14, 2009) (on file with minority staff).
---------------------------------------------------------------------------
Finally, section 206 authorizing the roving surveillance
authority is also without reported abuses. In fact, in recent
testimony before the House Judiciary Committee, Subcommittee on
Crime, Terrorism, and Homeland Security, the General Counsel
for the Office of Director of National Intelligence provided a
specific example of how the provision is being utilized to
track a foreign agent who ``changes cellular phones
frequently.''\13\
---------------------------------------------------------------------------
\13\USA PATRIOT Act Reauthorization: Hearing Before the Subcomm. On
Crime, Terrorism, and Homeland Security of the H. Comm. on the
Judiciary, 112th Cong. (March 9, 2011) (statement of Robert S. Litt,
General Counsel, Office of the Dir. Of Nat'l Intelligence).
---------------------------------------------------------------------------
These three provisions have provided law enforcement and
national security investigators the vital tools necessary to
investigate a host of terrorism cases. If we simply kick the
can down the road and delay the sunset of these provisions we
risk losing the operational edge against an enemy that have
proven to be methodical and resilient. Failing to recognize
that our enemy continues to watch our every move and adjust
their operational readiness to match the changes we make to our
counterterrorism tools would be a significant miscalculation.
We must show those who seek to harm our citizens and our way of
life that we are willing to do what it takes to prevent them
from waging attacks on our soil. Permanently extending the
three expiring provisions would send such a signal and ensure
the operational continuity that agents on the ground, at home
and abroad, deserve.
Charles E. Grassley.
Orrin G. Hatch.
Jon Kyl.
Jeff Sessions.
Lindsey Graham.
John Cornyn.
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. 193, 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 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)
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.
``(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 507 of the
National Security Act of 1947 (50 U.S.C. 415b).''.
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 10--BIOLOGICAL WEAPONS
SEC. 175C. VARIOLA VIRUS.
(a) Unlawful conduct.--
(1) In general.--Except as provided in paragraph (2),
it shall be unlawful for any person to knowingly
produce, engineer, synthesize, acquire, transfer
directly or indirectly, receive, possess, import,
export, or use, or possess and threaten to use, variola
virus.
(2) Exception.--This subsection does not apply to
conduct by, or under the authority of, the Secretary of
Health and Human Services.
(b) Jurisdiction.--Conduct prohibited by subsection (a) is
within the jurisdiction of the United States if--
(1) the offense occurs in or affects interstate or
foreign commerce;
(2) the offense occurs outside of the United States
and is committed by a national of the United States;
(3) the offense is committed against a national of
the United States while the national is outside the
United States;
(4) the offense is committed against any property
that is owned, leased, or used by the United States or
by any department or agency of the United States,
whether the property is within or outside the United
States; or
(5) an offender aids or abets any person over whom
jurisdiction exists under this subsection in committing
an offense under this section or conspires with any
person over whom jurisdiction exists under this
subsection to commit an offense under this section.
(c) Criminal Penalties.--
(1) In general.--Any person who violates, or attempts
or conspires to violate, subsection (a) shall be fined
not more than $2,000,000 and shall be sentenced to a
term of imprisonment not less than 25 years or to
imprisonment for life.
(2) Other circumstances.--Any person who, in the
course of a violation of subsection (a), uses, attempts
or conspires to use, or possesses and threatens to use,
any item or items described in subsection (a), shall be
fined not more than $2,000,000 and imprisoned for not
less than 30 years or imprisoned for life.
(3) Special circumstances.--If the death of another
results from a person's violation of subsection (a),
the person shall be fined not more than $2,000,000 and
punished by death or imprisonment for life.
(d) Definition.--As used in this section, the term
``variola virus'' means a virus that can cause human smallpox
or any derivative of the variola major virus that contains more
than 85 percent of the gene sequence of the variola major virus
or the variola minor virus.
* * * * * * *
CHAPTER 39--EXPLOSIVES AND OTHER DANGEROUS ARTICLES
SEC. 832. PARTICIPATION IN NUCLEAR AND WEAPONS OF MASS DESTRUCTION
THREATS TO THE UNITED STATES.
(a) Whoever, within the United States or subject to the
jurisdiction of the United States, willfully participates in or
knowingly provides material support or resources (as defined in
section 2339A) to a nuclear weapons program or other weapons of
mass destruction program of a foreign terrorist power, or
attempts or conspires to do so, shall be imprisoned for not
more than 20 years.
(b) There is extraterritorial Federal jurisdiction over an
offense under this section.
(c) Whoever without lawful authority develops, possesses,
or attempts or conspires to develop or possess a radiological
weapon, or threatens to use or uses a radiological weapon
against any person within the United States, or a national of
the United States while such national is outside of the United
States or against any property that is owned, leased, funded,
or used by the United States, whether that property is within
or outside of the United States, shall be punished by death if
death results to any person from the offense, or imprisoned for
any term of years or for life.
(d) As used in this section--
(1) ``nuclear weapons program'' means a program or
plan for the development, acquisition, or production of
any nuclear weapon or weapons;
(2) ``weapons of mass destruction program'' means a
program or plan for the development, acquisition, or
production of any weapon or weapons of mass destruction
(as defined in section 2332a(c));
(3) ``foreign terrorist power'' means a terrorist
organization designated under section 219 of the
Immigration and Nationality Act, or a state sponsor of
terrorism designated under section 6(j) of the Export
Administration Act of 1979 or section 620A of the
Foreign Assistance Act of 1961; and
(4) ``nuclear weapon'' means any weapon that contains
or uses nuclear material as defined in section
831(f)(1).
* * * * * * *
CHAPTER 113B--TERRORISM
SEC. 2332G. MISSILE SYSTEMS DESIGNED TO DESTROY AIRCRAFT.
(a) Unlawful Conduct.--
(1) In general.--Except as provided in paragraph (3),
it shall be unlawful for any person to knowingly
produce, construct, otherwise acquire, transfer
directly or indirectly, receive, possess, import,
export, or use, or possess and threaten to use--
(A) an explosive or incendiary rocket or
missile that is guided by any system designed
to enable the rocket or missile to--
(i) seek or proceed toward energy
radiated or reflected from an aircraft
or toward an image locating an
aircraft; or
(ii) otherwise direct or guide the
rocket or missile to an aircraft;
(B) any device designed or intended to launch
or guide a rocket or missile described in
subparagraph (A); or
(C) any part or combination of parts designed
or redesigned for use in assembling or
fabricating a rocket, missile, or device
described in subparagraph (A) or (B).
(2) Nonweapon.--Paragraph (1)(A) does not apply to
any device that is neither designed nor redesigned for
use as a weapon.
(3) Excluded conduct.--This subsection does not apply
with respect to--
(A) conduct by or under the authority of the
United States or any department or agency
thereof or of a State or any department or
agency thereof; or
(B) conduct pursuant to the terms of a
contract with the United States or any
department or agency thereof or with a State or
any department or agency thereof.
(b) Jurisdiction.--Conduct prohibited by subsection (a) is
within the jurisdiction of the United States if--
(1) the offense occurs in or affects interstate or
foreign commerce;
(2) the offense occurs outside of the United States
and is committed by a national of the United States;
(3) the offense is committed against a national of
the United States while the national is outside the
United States;
(4) the offense is committed against any property
that is owned, leased, or used by the United States or
by any department or agency of the United States,
whether the property is within or outside the United
States; or
(5) an offender aids or abets any person over whom
jurisdiction exists under this subsection in committing
an offense under this section or conspires with any
person over whom jurisdiction exists under this
subsection to commit an offense under this section.
(c) Criminal Penalties.--
(1) In general.--Any person who violates, or attempts
or conspires to violate, subsection (a) shall be fined
not more than $2,000,000 and shall be sentenced to a
term of imprisonment not less than 25 years or to
imprisonment for life.
(2) Other circumstances.--Any person who, in the
course of a violation of subsection (a), uses, attempts
or conspires to use, or possesses and threatens to use,
any item or items described in subsection (a), shall be
fined not more than $2,000,000 and imprisoned for not
less than 30 years or imprisoned for life.
(3) Special circumstances.--If the death of another
results from a person's violation of subsection (a),
the person shall be punished by death or fined not more
than $2,000,000 and punished by imprisonment for life.
(d) Definition.--As used in this section, the term
``aircraft'' has the definition set forth in section
40102(a)(6) of title 49, United States Code.
* * * * * * *
SEC. 2332H. RADIOLOGICAL DISPERSAL DEVICES.
(a) Unlawful Conduct.--
(1) In general.--Except as provided in paragraph (2),
it shall be unlawful for any person to knowingly
produce, construct, otherwise acquire, transfer
directly or indirectly, receive, possess, import,
export, or use, or possess and threaten to use--
(A) any weapon that is designed or intended
to release radiation or radioactivity at a
level dangerous to human life; or
(B) any device or other object that is
capable of and designed or intended to endanger
human life through the release of radiation or
radioactivity.
(2) Exception.--This subsection does not apply with
respect to--
(A) conduct by or under the authority of the
United States or any department or agency
thereof; or
(B) conduct pursuant to the terms of a
contract with the United States or any
department or agency thereof.
(b) Jurisdiction.--Conduct prohibited by subsection (a) is
within the jurisdiction of the United States if--
(1) the offense occurs in or affects interstate or
foreign commerce;
(2) the offense occurs outside of the United States
and is committed by a national of the United States;
(3) the offense is committed against a national of
the United States while the national is outside the
United States;
(4) the offense is committed against any property
that is owned, leased, or used by the United States or
by any department or agency of the United States,
whether the property is within or outside the United
States; or
(5) an offender aids or abets any person over whom
jurisdiction exists under this subsection in committing
an offense under this section or conspires with any
person over whom jurisdiction exists under this
subsection to commit an offense under this section.
(c) Criminal Penalties.--
(1) In general.--Any person who violates, or attempts
or conspires to violate, subsection (a) shall be fined
not more than $2,000,000 and shall be sentenced to a
term of imprisonment not less than 25 years or to
imprisonment for life.
(2) Other circumstances.--Any person who, in the
course of a violation of subsection (a), uses, attempts
or conspires to use, or possesses and threatens to use,
any item or items described in subsection (a), shall be
fined not more than $2,000,000 and imprisoned for not
less than 30 years or imprisoned for life.
(3) Special circumstances.--If the death of another
results from a person's violation of subsection (a),
the person shall be fined not more than $2,000,000 and
punished by death or imprisonment for life.
* * * * * * *
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 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 the judicial district
in which the recipient of the order is doing
business or 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
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 42--THE PUBLIC HEALTH AND WELFARE
CHAPTER 23--Development and Control of Atomic Energy Division a. Atomic
Energy
Subchapter XVII. Enforcement of Chapter
SEC. 2272. VIOLATION OF SPECIFIC SECTIONS.
(a) Whoever willfully violates, attempts to violate, or
conspires to violate, any provision of sections 2077 or 2131 of
this title, or whoever unlawfully interferes, attempts to
interfere, or conspires to interfere with any recapture or
entry under section 2138 of this title, shall, upon conviction
thereof, be punished by a fine of not more than $10,000 or by
imprisonment for not more than ten years, or both, except that
whoever commits such an offense with intent to injure the
United States or with intent to secure an advantage to any
foreign nation shall, upon conviction thereof, be punished by
imprisonment for life, or by imprisonment for any term of years
or a fine of not more than $20,000 or both.
(b) Any person who violates, or attempts or conspires to
violate, section 2122 of this title shall be fined not more
than $2,000,000 and sentenced to a term of imprisonment not
less than 25 years or to imprisonment for life. Any person who,
in the course of a violation of section 2122 of this title,
uses, attempts or conspires to use, or possesses and threatens
to use, any atomic weapon shall be fined not more than
$2,000,000 and imprisoned for not less than 30 years or
imprisoned for life. If the death of another results from a
person's violation of section 2122 of this title, the person
shall be fined not more than $2,000,000 and punished by death
or imprisonment for life.
* * * * * * *
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 I--Electronic Surveillance
SEC. 1805. ISSUANCE OF AN ORDER.
(a) Necessary Findings.--Upon an application made pursuant
to section 1804 of this title, the judge shall enter an ex
parte order as requested or as modified approving the
electronic surveillance if he finds that--
(1) the application has been made by a Federal
officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the
applicant there is probable cause to believe that--
(A) the target of the electronic surveillance
is a foreign power or an agent of a foreign
power: Provided, That no United States person
may be considered a foreign power or an agent
of a foreign power solely upon the basis of
activities protected by the first amendment to
the Constitution of the United States; and
(B) each of the facilities or places at which
the electronic surveillance is directed is
being used, or is about to be used, by a
foreign power or an agent of a foreign power;
(3) the proposed minimization procedures meet the
definition of minimization procedures under section
1801(h) of this title; and
(4) the application which has been filed contains all
statements and certifications required by section 1804
of this title and, if the target is a United States
person, the certification or certifications are not
clearly erroneous on the basis of the statement made
under section 1804(a)(7)(E) of this title and any other
information furnished under section 1804(d) of this
title.
(b) Determination of Probable Cause.--In determining
whether or not probable cause exists for purposes of an order
under subsection (a)(2) of this section, a judge may consider
past activities of the target, as well as facts and
circumstances relating to current or future activities of the
target.
(c) Specifications and Directions of Orders.--
(1) Specifications.--An order approving an electronic
surveillance under this section shall specify--
(A) the identity, if known, or a description
with particularity of the specific target of
the electronic surveillance identified or
described in the application pursuant to
section 1804(a)(3) of this title;
(B) the nature and location of each of the
facilities or places at which the electronic
surveillance will be directed, if known;
(C) the type of information sought to be
acquired and the type of communications or
activities to be subjected to the surveillance;
(D) the means by which the electronic
surveillance will be effected and whether
physical entry will be used to effect the
surveillance; and
(E) the period of time during which the
electronic surveillance is approved.
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.]the judge finds--
(A) that the application satisfies the
requirements of this section; and
(B) that, if there are exceptional
circumstances justifying the use of
minimization procedures in a particular case,
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 with 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 contain bookseller
records, or are from a library and contain
personally identifiable information about a
patron of the library, 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, and directing that the minimization
procedures be followed. [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.
(i) Definitions.--In this section--
(1) the term ``bookseller records'' means
transactional records reflecting the purchase
(including subscription purchase) or rental of books,
journals, or magazines, whether in digital form or in
print, of an individuals or entity engaged in the sale
or rental of books, journals, or magazines;
(2) the term ``library'' has the meaning given that
term in section 213(1) of the Library Services and
Technology Act (20 U.S.C. 9122(1));
(3) the term ``patron'' means a purchaser, renter,
borrower, user, or subscriber of goods or services from
a library; and
(4) the term ``personally identifiable information''
includes information that identifies a person as having
used, requested, or obtained specific reading materials
or services from a library.
SEC. 503. DEFINITIONS.
In this title, the terms ``Attorney General'', ``foreign
intelligence information'', ``international terrorism'',
``person'', ``United States'', and ``United States person''
have the meanings given such terms in section 101.
* * * * * * *
Subchapter V--Reporting Requirement
SEC. 601. 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) 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.
(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).
(d) Protection of National Security.--The Attorney General,
in consultation with the Director of National Intelligence, may
authorize redactions of materials described in 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.
(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.
SEC. 602. ANNUAL UNCLASSIFIED REPORT.
Not later than June 30, 2012, and every year thereafter,
the Attorney General, in consultation with the Director of
National Intelligence, and with due regard for the protection
of classified information from unauthorized disclosure, 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 an unclassified
report summarizing how the authorities under this Act are used,
including the impact of the use of the authorities under this
Act on the privacy of United States persons (as defined in
section 101).
* * * * * * *
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 [May 27, 2011] December
31, 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;]
(2)[(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
(3)[(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 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;]
(C) with respect to calendar years 2007
through 2011, an examination of the
minimization procedures used in relation to
orders under section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) and whether the 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 March 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 subsection (a) for
calendar years 2007, 2008, and 2009.
(4) Calendar years 2010 and 2011.--Not later than
March 31, 2013, 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 subsection (a) for
calendar years 2010 and 2011.
(d) Intelligence Assessment.--
(1) In general.--For the period beginning on January
1, 2007 and ending on December 31, 2011, the Inspector
General of each element of the intelligence community
outside of the Department of Justice that used
information acquired under title V of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861
et seq.) in the intelligence activities of the element
of the intelligence community shall--
(A) assess the importance of the information
to the intelligence activities of the element
of the intelligence community;
(B) examine the manner in which that
information was collected, retained, analyzed,
and disseminated by the element of the
intelligence community;
(C) describe any noteworthy facts or
circumstances relating to orders under title V
of the Foreign Intelligence Surveillance Act of
1978 as the orders relate to the element of the
intelligence community; and
(D) examine any minimization procedures used
by the element of the intelligence community
under title V of the Foreign Intelligence
Surveillance Act of 1978 and whether the
minimization procedures protect the
constitutional rights of United States persons.
(2) Submission dates for assessment.--
(A) Calendar years 2007 through 2009.--Not
later than March 31, 2012, the Inspector
General of each element of the intelligence
community that conducts an assessment under
this subsection 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
Representative a report containing the results
of the assessment for calendar years 2007
through 2009.
(B) Calendar years 2010 and 2011.--Not later
than March 31, 2013, the Inspector General of
each element of the intelligence community that
conducts an assessment under this subsection
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 assessment for
calendar years 2010 and 2011.
(e)[(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) or
(c)(2)] any report under subsection (c) or (d), the
Inspector General of the Department of Justice and any
Inspector General of an element of the intelligence
community that submits a report under this section
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) and (c)(2)] any report submitted under
subsection (c) or (d) as the Attorney General or the
Director of National Intelligence may consider
necessary.
(f)[(e)] Unclassified Form.--[The reports submitted under
subsections (c)(1) and (c)(2)] Each report submitted under
subsection (c) and any comments included under [subsection
(d)(2)] subsection (e)(2) shall be in unclassified form, but
may include a classified annex.
(g) Definitions.--In this section--
(1) the term ``intelligence community'' has the
meaning given that term in section 3 of the National
Security Act of 1947 (50 U.S.C. 401a); and
(2) the term ``United States person'' has the meaning
given that term in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
* * * * * * *
SECTION 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) Unclassified form.--The report under this
section shall be submitted in unclassified form.]
(c) Reports on Requests for National Security Letters.--
(1) Definitions.--In this subsection--
(A) the term ``applicable period'' means--
(i) with respect to the first report
submitted under paragraph (2) or (3),
the period beginning 180 days after the
date of enactment of the USA PATRIOT
Act Sunset Extension Act of 2011 and
ending on December 31, 2011; and
(ii) with respect to the second
report submitted under paragraph (2) or
(3), and each report thereafter, the 6-
month period ending on the last day of
the second month before the date for
submission of the report; and
(B) the term ``United States person'' has the
meaning given that term in section 101 of the
Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801).
(2) Classified form.--
(A) In general.--Not later than February 1,
2012, and every 6 months thereafter, the
Attorney General shall submit to the Select
Committee on Intelligence, the Committee on the
Judiciary, and the Committee on Banking,
Housing, and Urban Affairs of the Senate and
the Permanent Select Committee on Intelligence,
the Committee on the Judiciary, and the
Committee on Financial Services of the House of
Representatives a report fully informing the
committees concerning the requests made under
section 2709(a) of title 18, United States
Code, section 1114(a)(5)(A) of the Right to
Financial Privacy Act of 1978 (12 U.S.C.
3414(a)(5)(A)), section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u), section 627 of
the Fair Credit Reporting Act (15 U.S.C.
1681v), or section 802 of the National Security
Act of 1947 (50 U.S.C. 436) during the
applicable period.
(B) Contents.--Each report under subparagraph
(A) shall include, for each provision of law
described in subparagraph (A)--
(i) the number of authorized requests
under the provision, including requests
for subscriber information; and
(ii) the number of authorized
requests under the provision--
(I) that relate to a United
States person;
(II) that relate to a person
that is not a United States
person;
(III) that relate to a person
that is--
(aa) the subject of
an authorized national
security investigation;
or
(bb) an individual
who has been in contact
with or otherwise
directly linked to the
subject of an
authorized national
security investigation;
and
(IV) that relate to a person
that is not known to be the
subject of an authorized
national security investigation
or to have been in contact with
or otherwise directly linked to
the subject of an authorized
national security
investigation.
(3) Unclassified form.--
(A) In general.--Not later than February 1,
2012, and every 6 months thereafter, the
Attorney General shall submit to the Select
Committee on Intelligence, the Committee on the
Judiciary, and the Committee on Banking,
Housing, and Urban Affairs of the Senate and
the Permanent Select Committee on Intelligence,
the Committee on the Judiciary, and the
Committee on Financial Services of the House of
Representatives a report fully informing the
committees concerning the aggregate total of
all requests identified under paragraph (2)
during the applicable period ending on the last
day of the second month before the date for
submission of the report. Each report under
this subparagraph shall be in unclassified
form.
(B) Contents.--Each report under subparagraph
(A) shall include the aggregate total of
requests--
(i) that relate to a United States
person;
(ii) that relate to a person that is
not a United States person;
(iii) that relate to a person that
is--
(I) the subject of an
authorized national security
investigation; or
(II) an individual who has
been in contact with or
otherwise directly linked to
the subject of an authorized
national security
investigation; and
(iv) that relate to a person that is
not known to be the subject of an
authorized national security
investigation or to have been in
contact with or otherwise directly
linked to the subject of an authorized
national security investigation.
* * * * * * *
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 March 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 2007, 2008, and 2009.
(4) Calendar years 2010 and 2011.--Not later than
March 31, 2013, 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) Intelligence Assessment.--
(1) In general.--For the period beginning on January
1, 2007 and ending on December 31, 2011, the Inspector
General of each element of the intelligence community
outside of the Department of Justice that issued
national security letters in the intelligence
activities of the element of the intelligence community
shall--
(A) examine the use of national security
letters by the element of the intelligence
community during the period;
(B) describe any noteworthy facts or
circumstances relating to the use of national
security letters by the element of the
intelligence community, including any improper
or illegal use of such authority;
(C) assess the importance of information
received under the national security letters to
the intelligence activities of the element of
the intelligence community; and
(D) examine the manner in which information
received under the national security letters
was collected, retained, analyzed, and
disseminated.
(2) Submission dates for assessment.--
(A) Calendar years 2007 through 2009.--Not
later than March 31, 2012, the Inspector
General of each element of the intelligence
community that conducts an assessment under
this subsection 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 assessment for calendar years 2007
through 2009.
(B) Calendar years 2010 and 2011.--Not later
than March 31, 2013, the Inspector General of
any element of the intelligence community that
conducts an assessment under this subsection
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 assessment for
calendar years 2010 and 2011.
(e)[(d)] Prior Notice to Attorney General and Director of
National Intelligence; Comments.--
(1) Notice.--Not less than 30 days before the
submission of any report under subsection (c) or (d)[ a
report under subsection (c)(1) or (c)(2)], the
Inspector General of the Department of Justice and any
Inspector General of an element of the intelligence
community that submits a report under this section
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) or (c)(2)] any report submitted under subsection
(c) or (d) as the Attorney General or the Director of
National Intelligence may consider necessary.
(f)[(e)] Unclassified Form.--[The reports submitted under
subsection (c)(1) or (c)(2)] Each report submitted under
subsection (c) and any comments included under subsection
(e)(2) [subsection (d)(2)] shall be in unclassified form, but
may include a classified annex.
(g)[(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).]
(h) Definitions.--In this section--
(1) the term ``intelligence community'' has the
meaning given that term in section 3 of the National
Security Act of 1947 (50 U.S.C. 401a);
(2) the term ``national security letter'' means a
request for information under--
(A) section 2709(a) of title 18, United
States Code (to access certain communication
service provider records);
(B) section 1114(a)(5)(A) of the Right to
Financial Privacy Act of 1978 (12 U.S.C.
3414(a)(5)(A)) (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); or
(E) section 627 of the Fair Credit Reporting
Act (15 U.S.C. 1681v) (to obtain credit agency
consumer records for counterterrorism
investigations); and
(3) the term ``United States person'' has the meaning
given that term in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
* * * * * * *
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.
* * * * * * *
FISA AMENDMENTS ACT OF 2008
Public Law No. 110-261
50 U.S.C. 1881 note
SEC. 403. REPEALS.
* * * * * * *
(b) Fisa Amendments Act of 2008.--
(1) In general.--Except as provided in section 404,
effective December 31, 2013 [December 31, 2012], title
VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 101(a), is repealed.
(2) Technical and conforming amendments.--Effective
December 31, 2013 [December 31, 2012]--
(A) the table of contents in the first
section of such Act (50 U.S.C. 1801 et seq.) is
amended by striking the items related to title
VII;
(B) except as provided in section 404,
section 601(a)(1) of such Act (50 U.S.C.
1871(a)(1)) is amended to read as such section
read on the day before the date of the
enactment of this Act; and
(C) except as provided in section 404,
section 2511(2)(a)(ii)(A) of title 18, United
States Code, is amended by striking ``or a
court order pursuant to section 704 of the
Foreign Intelligence Surveillance Act of
1978''.
SEC. 404. TRANSITION PROCEDURES.
* * * * * * *
(b) Transition Procedures for FISA Amendments Act of 2008
Provisions.--
(1) Orders in effect on december 31, 2013 [december
31, 2012].--Notwithstanding any other provision of this
Act, any amendment made by this Act, or the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), any order, authorization, or directive issued
or made under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101(a),
shall continue in effect until the date of the
expiration of such order, authorization, or directive.
* * * * * * *
New Provisions Under USA PATRIOT Act
Sunset Extension Act of 2011 (S. 193)
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 the second of the 2 sections
designated as section 624 of such Act (15
U.S.C. 1681u) (relating to disclosure to the
Federal Bureau of Investigation for counter-
intelligence purposes), as added by Section 601
of the Intelligence Authorization Act for
Fiscal year 1996 (Public Law 104-93; 109 Stat.
974), read on October 25, 2001; and
(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;
(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;
(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, or to another department,
agency, or instrumentality of Federal,
State, local, or tribal governments;
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 March 31,
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 2007 through 2009.
(B) Calendar years 2010 and 2011.--Not later
than March 31, 2013, 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) Intelligence assessment.--
(A) In general.--For the period beginning
January 1, 2007 and ending on December 31,
2011, the Inspector General of any element of
the intelligence community outside of the
Department of Justice that used information
acquired under a pen register or trap and trace
device under title IV of the Foreign
Intelligence Surveillance Act of 1978 in the
intelligence activities of the element of the
intelligence community shall--
(i) assess the importance of the
information to the intelligence
activities of the element of the
intelligence community;
(ii) examine the manner in which the
information was collected, retained,
analyzed, and disseminated;
(iii) describe any noteworthy facts
or circumstances relating to orders
under title IV of the Foreign
Intelligence Surveillance Act of 1978
as the orders relate to the element of
the intelligence community; and
(iv) examine any minimization
procedures used by the element of the
intelligence community 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.
(B) Submission dates for assessment.--
(i) Calendar years 2007 through
2009.--Not later than March 31, 2012,
the Inspector General of each element
of the intelligence community that
conducts an assessment under this
paragraph 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 assessment for calendar
years 2007 through 2009.
(ii) Calendar years 2010 and 2011.--
Not later than March 31, 2013, the
Inspector General of each element of
the intelligence community that
conducts an assessment under this
paragraph 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
Representative a report containing the
results of the assessment for calendar
years 2010 and 2011.
(5) Prior notice to attorney general and director of
national intelligence; comments.--
(A) Notice.--Not less than 30 days before the
submission of any report under paragraph (3) or
(4), the Inspector General of the Department of
Justice and any Inspector General of an element
of the intelligence community that submits a
report under this susbsection 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 any report
submitted under paragraph (3) or (4) as the
Attorney General or the Director of National
Intelligence may consider necessary.
(6) Unclassified form.--Each report submitted under
paragraph (3) and any comments included in that report
under paragraph (5)(B) shall be in unclassified form,
but may include a classified annex.
(d) Definitions.--In this section--
(1) the terms `foreign intelligence information' and
`United States person' have the meanings given those
terms in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801); and
(2) the term `intelligence community' has the meaning
given that term in section 3 of the National Security
Act of 1947 (50 U.S.C. 401a).
SEC. 12.--PROCEDURES.
(a) In General.--The Attorney General shall periodically
review, and revise as necessary, the procedures adopted by the
Attorney General on October 1, 2010 for the collection, use,
and storage of information obtained in response to 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)), 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).
(b) Considerations.--In reviewing and revising the
procedures described in subsection (a), the Attorney General
shall give due consideration to the privacy interests of
individuals and the need to protect national security.
(c) Revisions to Procedures and Oversight.--If the Attorney
General makes any significant changes to the procedures
described in subsection (a), the Attorney General shall notify
and submit a copy of the changes 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.
APPENDIX