[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.

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                  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).

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        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.

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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).

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SECTION 118. REPORTS ON NATIONAL SECURITY LETTERS.

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    [(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.

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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


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