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HR 3845 IH

111th CONGRESS

1stRHCommentsClose CommentsPermalink

2d SessionCommentsClose CommentsPermalink

H. R. 3845CommentsClose CommentsPermalink

To extend and modify authorities needed to combat terrorism and protect civil liberties, and for other purposes.CommentsClose CommentsPermalink

IN THE HOUSE OF REPRESENTATIVESCommentsClose CommentsPermalink

October 20, 2009CommentsClose CommentsPermalink

Mr. CONYERS (for himself, Mr. NADLER of New York, Mr. SCOTT of Virginia, Mr. COHEN, Ms. HARMAN, Ms. JACKSON-LEE of Texas, and Mr. JOHNSON of Georgia) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Permanent Select Committee on Intelligence and Committee on Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concernedCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To extend and modify authorities needed to combat terrorism and protect civil liberties, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the ‘USA PATRIOT Amendments Act of 2009’. CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents for this Act is as follows: CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents. CommentsClose CommentsPermalink

TITLE I--USA PATRIOT ACT RELATED AMENDMENTS

Sec. 101. Roving wiretaps. CommentsClose CommentsPermalink





Sec. 102. Extension of sunset of sections 206 and 215 of USA PATRIOT Act. CommentsClose CommentsPermalink





Sec. 103. Access to certain tangible things under section 501 of the Foreign Intelligence Surveillance Act of 1978. CommentsClose CommentsPermalink





Sec. 104. Sunset relating to individual terrorists as agents of foreign powers. CommentsClose CommentsPermalink





Sec. 105. Audits. CommentsClose CommentsPermalink





Sec. 106. Criminal ‘sneak and peaek’ searches. CommentsClose CommentsPermalink





Sec. 107. Use of pen registers and trap and trace devices under title 18, United States Code.Sec. 108. Orders for pen registers and trap and trace devices for foreign intelligence purposes. CommentsClose CommentsPermalink





Sec. 1098. Public reporting on the Foreign Intelligence Surveillance Act of 1978. CommentsClose CommentsPermalink





Sec. 11009. Challenges to nationwide orders for electronic evidence. CommentsClose CommentsPermalink





Sec. 110. Report on civil liberties and privacy protections. CommentsClose CommentsPermalink

TITLE II--NATIONAL SECURITY LETTER REFORM

Sec. 201. Short title. CommentsClose CommentsPermalink





Sec. 202. Sunset. CommentsClose CommentsPermalink





Sec. 203. National security letter defined. CommentsClose CommentsPermalink





Sec. 204. Modification of standard. CommentsClose CommentsPermalink





Sec. 205. Notification of right to judicial review of nondisclosure order. CommentsClose CommentsPermalink





Sec. 206. Disclosure for law enforcement purposes. CommentsClose CommentsPermalink





Sec. 207. Judicial review of national security letter nondisclosure order. CommentsClose CommentsPermalink





Sec. 208. Minimization Procedure. CommentsClose CommentsPermalink





Sec. 209. Public reporting on National Security Letters. CommentsClose CommentsPermalink

Sec. 301. Sense of Congress on level of classification of certain programs. CommentsClose CommentsPermalink

TITLE I--USA PATRIOT ACT RELATED AMENDMENTS CommentsClose CommentsPermalink

SEC. 101. ROVING WIRETAPS.

TSection 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended--

(1) in section 104(a)(2), by striking ‘electronic surveillance’ and inserting ‘electronic surveillance sufficient to allow a judge to determine that the target is a single individual’; and

(2) in section 105(a)--

(A) in paragraph (3), by striking ‘and’;

(B) in paragraph (4), by striking the period and inserting ‘; and’; and

(C) by adding at the end the following new paragraph:

‘(5) the identity or description of the5(c)(2)(B)) is amended by striking ‘finds, based upon specific target of electronic surveillance included in the application pursuant to section 104(a)(2) is sufficient to allow the judge to determine that the target is a single individual.facts’ and inserting ‘finds-- CommentsClose CommentsPermalink




‘(i) that the target of the application is a foreign power, as defined in paragraph (1), (2), (3), or (6) of section 101(a), an agent of such a foreign power, or a specific individual; and CommentsClose CommentsPermalink





‘(ii) based upon specific facts’. CommentsClose CommentsPermalink

SEC. 102. EXTENSION OF SUNSET OF SECTIONS 206 AND 215 OF USA PATRIOT ACT.

Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (18 U.S.C. 2510 note) is amended by striking ‘December 31, 2009’ and inserting ‘December 31, 2013’. CommentsClose CommentsPermalink

SEC. 103. ACCESS TO CERTAIN TANGIBLE THINGS UNDER SECTION 501 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

(a) Factual Basis for and Issuance of Orders- CommentsClose CommentsPermalink





(1) IN GENERAL- Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended-- CommentsClose CommentsPermalink





(A) in the section heading, by striking ‘certain business records’ and inserting ‘tangible things’; and CommentsClose CommentsPermalink





(B) in subsection (b)(2)(A),-- CommentsClose CommentsPermalink





(i) by striking ‘a statement of facts showing’ and inserting ‘a statement of specific and articulable factsthe facts and circumstances relied upon by the applicant to justify the belief of the applicant’; and CommentsClose CommentsPermalink





(ii) by striking ‘clandestine intelligence activities’ and all that follows and inserting ‘clandestine intelligence activities;’. CommentsClose CommentsPermalink





(2) TECHNICAL AND CONFORMING AMENDMENTS- CommentsClose CommentsPermalink





(A) TITLE HEADING- Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended in the title heading by striking ‘CERTAIN BUSINESS RECORDS’ and inserting ‘TANGIBLE THINGS’. CommentsClose CommentsPermalink





(B) TABLE OF CONTENTS- The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by striking the items relating to title V and section 501 and inserting the following: CommentsClose CommentsPermalink

‘TITLE V--ACCESS TO TANGIBLE THINGS FOR FOREIGN INTELLIGENCE PURPOSES

‘Sec. 501. Access to tangible things for foreign intelligence purposes and international terrorism investigations.’. CommentsClose CommentsPermalink





(b) Judicial Review of FISA Orders- Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended-- CommentsClose CommentsPermalink





(1) in subsection (c)(2)-- CommentsClose CommentsPermalink





(A) in subparagraph (D) by striking ‘things; and’ and inserting ‘things;’; CommentsClose CommentsPermalink





(B) in subparagraph (E), by striking ‘subsection (a).’ and inserting ‘subsection (a); and’; and CommentsClose CommentsPermalink





(C) by adding at the end the following new subparagraph: CommentsClose CommentsPermalink





‘(F) shall direct the applicant to provide notice to each person receiving such order of-- CommentsClose CommentsPermalink





‘(i) the right to challenge the legality of a production order or nondisclosure order by filing a petition in accordance with subsection (f); and CommentsClose CommentsPermalink





‘(ii) the procedures to follow to file such petition in accordance with such subsection.’; and CommentsClose CommentsPermalink





(2) in subsection (f)(2)-- CommentsClose CommentsPermalink





(A) in subparagraph (A)-- CommentsClose CommentsPermalink





(i) in clause (i)-- CommentsClose CommentsPermalink





(I) by striking ‘a production order’ and inserting ‘a production order or nondisclosure order’; and CommentsClose CommentsPermalink





(II) by striking ‘Not less than 1 year’ and all that follows; CommentsClose CommentsPermalink





(ii) in clause (ii), by striking ‘production order or nondisclosure’; and CommentsClose CommentsPermalink





(B) in subparagraph (C)-- CommentsClose CommentsPermalink





(i) by striking clause (ii); and CommentsClose CommentsPermalink





(ii) by redesignating clause (iii) as clause (ii). CommentsClose CommentsPermalink





(c) Minimization Procedures- Section 501(g) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is amended-- CommentsClose CommentsPermalink





(1) by redesignating paragraph (2) as paragraph (3); and CommentsClose CommentsPermalink





(2) by inserting after paragraph (1) the following new paragraph: CommentsClose CommentsPermalink





‘(2) COMPLIANCE ASSESSMENT- 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 such order, a judge may assess compliance with the minimization procedures required to be followed under such order by reviewing the circumstances under which information concerning United States persons was retained or disseminated.’. CommentsClose CommentsPermalink





(d) Exemption of Bookstores and LibrarieRequirements for Orders for Certain Records From Orders Requiring the Production of Any Tangible Things for Certain Foreign Intelligence InvestigationLibraries- Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended-- CommentsClose CommentsPermalink





(1) in subsection (a)(3)--

(A) by striking ‘library patron lists,’; and

(B) by striking ‘book customer lists,b)(2)-- CommentsClose CommentsPermalink




(A) by redesignating subparagraph (B) as subparagraph (C); and CommentsClose CommentsPermalink





(B) by inserting after subparagraph (A) the following new subparagraph: CommentsClose CommentsPermalink





‘(B) if the records sought contain bookseller information, or are from a library (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1))) and contain personally identifiable information about a patron of such library, a statement of specific and articulable facts showing that there are reasonable grounds to believe that the records sought-- CommentsClose CommentsPermalink





‘(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 CommentsClose CommentsPermalink





‘(ii)(I) pertain to a foreign power or an agent of a foreign power; CommentsClose CommentsPermalink





‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or CommentsClose CommentsPermalink





‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and’; and CommentsClose CommentsPermalink





(2) by adding at the end the following new subsection: CommentsClose CommentsPermalink





‘(i) Prohibition on Application for CertainBookseller Information From Booksellers and Libraries-

‘(1) IN GENERAL- No application may be made under this section with either the purpose or effect of searching for, or seizing from, a bookseller or library documentary materials that contain personally identifiable information concerning a patron of a bookseller or library.

‘(2) DEFINITIONSDefined- In this subsection:

‘(A) The term ‘bookseller’ means any person or entity engaged in the sale, rental or delivery of books, journals, magazines or other similar forms of communication in print or digitally.

‘(B) Tection, the term ‘library’ has the meaning given that term under section 213(2) of the Library Services and Technology Act (20 U.S.C. 9122(2)) whose services include access to the Internet,bookseller information’ means personally identifiable information concerning the purchase (including subscription purchases) or rental of books, journals, or magazines, newspapers, or other similar forms of communication in print or digitally to patrons for their use, review, examination, or circulation.

‘(C) The term ‘patron’ means any purchaser, renter, borrower, user, or subscriber of goods or services from a library or bookseller.

‘(D) The term ‘documentary materials’ means any document, tape, or other communication created by a bookseller or library in connection withwhether in print or digital dissemination of a book, journal, magazine, newspaper, or other similar form of communication, including access to the Internet.‘(E) The term ‘personally identifiable information’ includes information that identifies a person as having used, requested, or obtained specific reading materials or services from a bookseller or librarly.’. CommentsClose CommentsPermalink

SEC. 104. SUNSET RELATING TO INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.

Section 6001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 1801 note; Public Law 108-458) is amended-- CommentsClose CommentsPermalink





(1) in paragraph (1)-- CommentsClose CommentsPermalink





(A) by striking ‘the amendment made by subsection (a) shall cease to have effect’ and inserting ‘effective’; and CommentsClose CommentsPermalink





(B) by striking the period and inserting ‘-- CommentsClose CommentsPermalink





‘(A) subparagraph (C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) is repealed; CommentsClose CommentsPermalink





‘(B) subparagraphs (D) and (E) of such section are redesignated as subparagraphs (C) and (D), respectively; CommentsClose CommentsPermalink





‘(C) paragraph (2) of section 601(a) of such Act (50 U.S.C. 1871(a)) is repealed; and CommentsClose CommentsPermalink





‘(D) paragraphs (3), (4), and (5) of such section are redesignated as paragraphs (2), (3), and (4), respectively.’; and CommentsClose CommentsPermalink





(2) in paragraph (2)-- CommentsClose CommentsPermalink





(A) by striking ‘EXCEPTION- With respect to’ and inserting ‘EXCEPTION- CommentsClose CommentsPermalink





‘(A) EXISTING INVESTIGATIONS- With respect to’; and CommentsClose CommentsPermalink





(B) by adding at the end the following new subparagraph: CommentsClose CommentsPermalink





‘(B) REPORTS- Notwithstanding the repeals made by paragraph (1), the first report required under section 601(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)) that is submitted after the effective date of such repeals shall include the number of individuals covered by an order issued pursuant to section 101(b)(1)(C) of such Act (as in effect on the day before such effective date).’. CommentsClose CommentsPermalink

SEC. 105. AUDITS.

(a) Tangible Things- Section 106A of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109-177; 120 Stat. 200) is amended-- CommentsClose CommentsPermalink





(1) in subsection (b)-- CommentsClose CommentsPermalink





(A) in paragraph (1), by striking ‘2006’ and inserting ‘2013’; and CommentsClose CommentsPermalink





(B) in paragraph (5)(C), by striking ‘calendar year 2006’ and inserting ‘each of calendar years 2006 through 2013’; CommentsClose CommentsPermalink





(2) in subsection (c), by adding at the end the following: CommentsClose CommentsPermalink





‘(3) CALENDAR YEARS 2007 THROUGH 2009- Not later than December 31, 2010, 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 through 2009. CommentsClose CommentsPermalink





‘(4) CALENDAR YEARS 2010 THROUGH 2013- Not later than December 31, 2011, and annually thereafter until December 31, 2014, 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 the preceding calendar year.’; CommentsClose CommentsPermalink





(3) in subsection (d)-- CommentsClose CommentsPermalink





(A) in paragraph (1), by striking ‘or (c)(2)’ and inserting ‘, (c)(2), (c)(3), or (c)(4)’; and CommentsClose CommentsPermalink





(B) in paragraph (2), by striking ‘and (c)(2)’ and inserting ‘, (c)(2), (c)(3), or (c)(4)’; and CommentsClose CommentsPermalink





(4) in subsection (e), by striking ‘and (c)(2)’ and inserting ‘, (c)(2), (c)(3), or (c)(4)’. CommentsClose CommentsPermalink





(b) National Security Letters- Section 119 of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109-177; 120 Stat. 219) is amended-- CommentsClose CommentsPermalink





(1) in subsection (b)(1), by striking ‘2006’ and inserting ‘2013’; CommentsClose CommentsPermalink





(2) in subsection (c), by adding at the end the following: CommentsClose CommentsPermalink





‘(3) CALENDAR YEARS 2007 THROUGH 2009- Not later than December 31, 2010, 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 through 2009. CommentsClose CommentsPermalink





‘(4) CALENDAR YEARS 2010 THROUGH 2013- Not later than December 31, 2011, and annually thereafter until December 31, 2014, 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 the previous calendar year.’; CommentsClose CommentsPermalink





(3) in subsection (d)-- CommentsClose CommentsPermalink





(A) in paragraph (1), by striking ‘or (c)(2)’ and inserting ‘, (c)(2), (c)(3), or (c)(4)’; and CommentsClose CommentsPermalink





(B) in paragraph (2), by striking ‘or (c)(2)’ and inserting ‘, (c)(2), (c)(3), or (c)(4)’; and CommentsClose CommentsPermalink





(4) in subsection (e), by striking ‘or (c)(2)’ and inserting ‘, (c)(2), (c)(3), or (c)(4)’. CommentsClose CommentsPermalink





(c) Pen Registers and Trap and Trace Devices- CommentsClose CommentsPermalink





(1) AUDITS- The Inspector General of the Department of Justice shall perform comprehensive audits of the effectiveness and use by the Federal Government, 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.) and section 3122 of title 18, United States Code, during the period beginning on January 1, 2007 and ending on December 31, 2012. CommentsClose CommentsPermalink





(2) REQUIREMENTS- The audits required under paragraph (1) shall include-- CommentsClose CommentsPermalink





(A) an examination of each instance in which the Attorney General or any other attorney for the Government submitted an application for an order or extension of an order under title IV of the Foreign Intelligence Surveillance Act of 1978, including whether the court granted, modified, or denied the application (including an examination of the basis for any modification or denial); CommentsClose CommentsPermalink





(B) an examination of each instance in which the Attorney General authorized the installation and use of a pen register or trap and trace device on an emergency basis under section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843); CommentsClose CommentsPermalink





(C) whether the Federal Bureau of Investigation requested that the Department of Justice submit an application for an order or extension of an order under title IV of the Foreign Intelligence Surveillance Act of 1978 and the request was not submitted to the court (including an examination of the basis for not submitting the application); CommentsClose CommentsPermalink





(D) whether bureaucratic or procedural impediments to the use of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 prevent the Federal Bureau of Investigation from taking full advantage of the authorities provided under that title; CommentsClose CommentsPermalink





(E) 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 CommentsClose CommentsPermalink





(F) an examination of the effectiveness of the authority under title IV of the Foreign Intelligence Surveillance Act of 1978 as an investigative tool, including-- CommentsClose CommentsPermalink





(i) the importance of the information acquired to the intelligence activities of the Federal Bureau of Investigation or any other department or agency of the Federal Government; CommentsClose CommentsPermalink





(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; CommentsClose CommentsPermalink





(iii) with respect to calendar years 2010 through 2012, 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; CommentsClose CommentsPermalink





(iv) whether, and how often, the Federal Bureau of Investigation used information acquired under a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978 to produce an analytical intelligence product for distribution within the Federal Bureau of Investigation, to the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))), or to other Federal, State, local, or tribal government departments, agencies, or instrumentalities; and CommentsClose CommentsPermalink





(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. CommentsClose CommentsPermalink





(3) SUBMISSION DATES- CommentsClose CommentsPermalink





(A) PRIOR YEARS- Not later than December 31, 2010, 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 thorough 2009. CommentsClose CommentsPermalink





(B) CALENDAR YEARS 2010 THROUGH 2013- Not later than December 31, 2011, and annually thereafter until December 31, 2014, 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 the previous calendar year. CommentsClose CommentsPermalink





(4) PRIOR NOTICE TO ATTORNEY GENERAL AND DIRECTOR OF NATIONAL INTELLIGENCE; COMMENTS- CommentsClose CommentsPermalink





(A) NOTICE- Not less than 30 days before the submission of a report under subparagraph (A) or (B) of paragraph (3), the Inspector General of the Department of Justice shall provide the report to the Attorney General and the Director of National Intelligence. CommentsClose CommentsPermalink





(B) COMMENTS- The Attorney General or the Director of National Intelligence may provide such comments to be included in a report submitted under subparagraph (A) or (B) of paragraph (3) as the Attorney General or the Director of National Intelligence may consider necessary. CommentsClose CommentsPermalink





(5) UNCLASSIFIED FORM- A report submitted under subparagraph (A) or (B) of paragraph (3) and any comments included under paragraph (4)(B) shall be in unclassified form, but may include a classified annex. CommentsClose CommentsPermalink

SEC. 106. CRIMINAL ‘SNEAK AND PEAEK’ SEARCHES.

Section 3103a of title 18, United States Code, is amended-- CommentsClose CommentsPermalink





(1) in subsection (b)-- CommentsClose CommentsPermalink





(A) in paragraph (1), by striking ‘may have an adverse result (as defined in section 2705, except if the adverse results consist only of unduly delaying a trial)’ and inserting ‘willmay endanger the life or physical safety of an individual, result in flight from prosecution, result in the destruction of or tampering with the evidence sought under the warrant, or result in intimidation of potential witnesses, or is likely to otherwise seriously jeopardize an investigation or unduly delay a trial’; and CommentsClose CommentsPermalink





(B) in paragraph (3), by striking ‘30 days’ and all that follows and inserting ‘7 days after the date of its execution.’; and CommentsClose CommentsPermalink





(2) in subsection (c), by striking ‘for good cause shown’ and all that follows and inserting ‘upon application of the United States Attorney for the district seeking the delay, for additional periods of not more than 21 days for each application, if the court finds, for each application, reasonable cause to believe that notice of the execution of the warrant willmay endanger the life or physical safety of an individual, result in flight from prosecution, result in the destruction of or tampering with the evidence sought under the warrant, or result in intimidation of potential witnesses, or is likely to otherwise seriously jeopardize an investigation or unduly delay a trial.’. CommentsClose CommentsPermalink

SEC. 107. USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES UNDER TITLE 18, UNITED STATES CODE.

Section 3122(b)(2) of title 18, United States Code, is amended to read as follows:

‘(2) a statement of specific and articulable facts by the applicant to justify the belief of the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.’.

SEC. 108. ORDERS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE PURPOSES.

(a) Application- Section 402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended-- CommentsClose CommentsPermalink





(1) in paragraph (1), by striking ‘and’ at the end; CommentsClose CommentsPermalink





(2) in paragraph (2)-- CommentsClose CommentsPermalink





(A) by striking ‘a certification by the applicant’ and inserting ‘a statement of the specific and articulable facts relied upon by the applicant to justify the belief of the applicant’; and CommentsClose CommentsPermalink





(B) by striking the period at the end and inserting ‘; and’; and CommentsClose CommentsPermalink





(3) by adding at the end the following: CommentsClose CommentsPermalink





‘(3) a statement of proposed minimization procedures.’. CommentsClose CommentsPermalink





(b) MinimizationProcedures- CommentsClose CommentsPermalink





(1) DEFINITION- Section 401 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841) is amended by adding at the end the following: CommentsClose CommentsPermalink





‘(4) The term ‘minimization procedures’ means-- CommentsClose CommentsPermalink





‘(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 concerningknown to concern unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; CommentsClose CommentsPermalink





‘(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 CommentsClose CommentsPermalink





‘(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.’. CommentsClose CommentsPermalink





(2) PEN REGISTERS AND TRAP AND TRACE DEVICES- Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended-- CommentsClose CommentsPermalink





(A) in subsection (d)--

(i) in paragraph (1)--

(I) by striking ‘finds that the application’ and inserting(2)-- CommentsClose CommentsPermalink




(i) in subparagraph (C)(i)(VII), by striking ‘; and’ and inserting ‘;’; CommentsClose CommentsPermalink





(ii) in subparagraph (C)(ii)(IV), by striking the following: ‘finds that--

‘(A) the application’;

(II) in subparagraph (A), as designated by subclause (I) of this clause, by striking ‘section.’ and inserting ‘sectionperiod at the end and inserting ‘; and’; and CommentsClose CommentsPermalink




(IIIiii) by adding at the end the following new subparagraph: CommentsClose CommentsPermalink





‘(B) the proposed minimization procedures meet the definition of minimization procedures under this title.’.

(ii) in paragraph (2)(B)--

(I) in clause (ii)(II), by striking ‘and’ after the semicolon; and

(II) by adding at the end the following:

‘(iv) the minimization procedures be followed; andD) shall, if the judge finds that there are exceptional circumstances, direct that minimization procedures be followed.’; and CommentsClose CommentsPermalink





(B) by adding at the end the following: CommentsClose CommentsPermalink





‘(h) At or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved under an order or an extension under this section, the judge may assess compliance with the minimization procedures byany applicable minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated.’. CommentsClose CommentsPermalink





(3) EMERGENCIES- Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended-- CommentsClose CommentsPermalink





(A) by redesignating subsection (c) as subsection (d); and CommentsClose CommentsPermalink





(B) by inserting after subsection (b) the following: CommentsClose CommentsPermalink





‘(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 the minimization procedures required by this title for the issuance of a judicial order be followedminimization procedures be followed, if appropriate.’. CommentsClose CommentsPermalink





(4) USE OF INFORMATION- Section 405(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1)) is amended by inserting ‘and the minimization procedures required to be followed under the order authorizing the acquisition of such information under section 402 or under subsection (c) of section 403 for an emergency acquisition under such section’ before the periodunder this title, if required’ after ‘provisions of this section’. CommentsClose CommentsPermalink

SEC. 1098. PUBLIC REPORTING ON THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

Section 601 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871) is amended-- CommentsClose CommentsPermalink





(1) by redesignating subsections (b) through (e) as subsections (c) through (f), respectively; CommentsClose CommentsPermalink





(2) by inserting after subsection (a) the following: CommentsClose CommentsPermalink





‘(b) Public Report- The Attorney General shall make publicly available the portion of each report under subsection (a) relating to paragraph (1) of such subsection.’; and CommentsClose CommentsPermalink





(3) in subsection (e), as so redesignated, by striking ‘subsection (c)’ and inserting ‘subsection (d)’. CommentsClose CommentsPermalink

SEC. 11009. CHALLENGES TO NATIONWIDE ORDERS FOR ELECTRONIC EVIDENCE.

Section 2703 of title 18, United States Code, is amended by adding at the end the following: CommentsClose CommentsPermalink





‘(h) Judicial Review- A provider of electronic communication service or remote computing service may challenge a subpoena, order, or warrant requiring disclosure of customer communications or records under this section in-- CommentsClose CommentsPermalink





‘(1) the United States district court for the district in which the order was issued; or CommentsClose CommentsPermalink





‘(2) the United States district court for the district in which the order was served.’. CommentsClose CommentsPermalink

TITLE II--NATIONAL SECURITY LETTER REFORM CommentsClose CommentsPermalink

SEC. 201. SHORT TITLE.

This title may be referred to as the ‘National Security Letter Reform Act of 2009’. CommentsClose CommentsPermalink

SEC. 202. SUNSET.

(a) In General- Effective on December 31, 2013, the following provisions of law are amended to read as such provisions read on October 25, 2001: CommentsClose CommentsPermalink





(1)Section 2709 of title 18, United States Code. CommentsClose CommentsPermalink





(2) Section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)). CommentsClose CommentsPermalink





(3) Subsections (a) and (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u). CommentsClose CommentsPermalink





(4) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v). CommentsClose CommentsPermalink





(5) Section 802 of the National Security Act of 1947 (50 U.S.C. 436). CommentsClose CommentsPermalink





(b) Transition Provision- Notwithstanding subsection (a), the provisions of law referred to in subsection (a), as in effect on December 30, 2013, shall continue to apply 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. CommentsClose CommentsPermalink

SEC. 203. NATIONAL SECURITY LETTER DEFINED.

In this title, the term ‘national security letter’ means a request for information under one of the following provisions of law: CommentsClose CommentsPermalink





(1)Section 2709(a) of title 18, United States Code (to access certain communication service provider records). CommentsClose CommentsPermalink





(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). CommentsClose CommentsPermalink





(3) Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) (to obtain certain financial information and consumer reports). CommentsClose CommentsPermalink





(4) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) (to obtain credit agency consumer records for counterterrorism investigations). CommentsClose CommentsPermalink





(5) Section 802 of the National Security Act of 1947 (50 U.S.C. 436). CommentsClose CommentsPermalink

SEC. 204. MODIFICATION OF STANDARD.

(a) In General- A national security letter may not be issued unless the official having authority under law to issue that letter documents in a separate writing specific and articulable facts showing that there are reasonable grounds to believe that the information sought-- CommentsClose CommentsPermalink





(1) pertains to a foreign power or an agent of a foreign power.; CommentsClose CommentsPermalink





(2) is relevant to the activities of a suspected agent of a foreign power that is the subject of such authorized investigation; or CommentsClose CommentsPermalink





(3) pertains to an individual in contact with, or personally known to, a suspected agent of a foreign power that is the subject of such authorized investigation. CommentsClose CommentsPermalink





(b) Maintenance- The agency under whose authority thea national security letter is issued shall maintain a copy of thata separate writing required under subsection (a). CommentsClose CommentsPermalink





(c) Definitions- In this section, the terms ‘foreign power’ and ‘agent of a foreign power’ have the meaning given such terms in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801). CommentsClose CommentsPermalink

SEC. 205. NOTIFICATION OF RIGHT TO JUDICIAL REVIEW OF NONDISCLOSURE ORDER.

If a recipient of a national security letter is subject to a nondisclosure requirement imposed in connection with that national security letter, the official issuing that letter shall, simultaneously with its issuance, inform the recipient of the right of the recipient to judicial review of that requirement and that the requirement will remain in effect during the pendency of any judicial review proceedings. CommentsClose CommentsPermalink

SEC. 206. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES.

No information acquired by a national security letter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General, or a designee of the Attorney General at a level not lower than Section Chief of a division of the Department of Justice. CommentsClose CommentsPermalink

SEC. 207. JUDICIAL REVIEW OF NATIONAL SECURITY LETTER NONDISCLOSURE ORDER.

Section 3511(b) of title 18, United States Code, is amended to read as follows: CommentsClose CommentsPermalink





‘(b) Nondisclosure- CommentsClose CommentsPermalink





‘(1) IN GENERAL- CommentsClose CommentsPermalink





‘(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 (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, the recipient shall notify the Government. CommentsClose CommentsPermalink





‘(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 particular information about the existence or contents of the relevant request or order. An application under this subparagraph may be filed in the district court of the United States for any district within which the authorized investigation that is the basis for the request or order is being conducted. The applicable nondisclosure requirement shall remain in effect during the pendency of proceedings relating to the requirement. CommentsClose CommentsPermalink





‘(C) CONSIDERATION- A district court of the United States that receives an application under subparagraph (B) should rule expeditiously, and may issue a nondisclosure order for a period of not longer than 180 days. CommentsClose CommentsPermalink





‘(D) DENIAL- If a district court of the United States rejects an application for a nondisclosure order or extension thereof, the nondisclosure requirement shall no longer be in effect. CommentsClose CommentsPermalink





‘(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, of the existence of a result described in subparagraphs (A) through (D) and a statement of specific and articulable facts indicating that, absent a prohibition of disclosure under this subsection, there may result-- CommentsClose CommentsPermalink





‘(A) a danger to the national security of the United States; CommentsClose CommentsPermalink





‘(B) interference with a criminal, counterterrorism, or counterintelligence investigation; CommentsClose CommentsPermalink





‘(C) interference with diplomatic relations; or CommentsClose CommentsPermalink





‘(D) danger to the life or physical safety of any person. CommentsClose CommentsPermalink





‘(3) STANDARD- A district court of the United States may issue a nondisclosure requirement order or extension thereof under this subsection if the court determines that there is reason to believe that disclosure of the information subject to the nondisclosure requirement during the applicable time period will have a result described in paragraph (2). CommentsClose CommentsPermalink





‘(4) RENEWAL- A nondisclosure order under this subsection may be renewed for additional periods of not longer than 180 days each, upon a determination by the court that a result described in paragraph (2) justifies the renewal. CommentsClose CommentsPermalink





‘(5) EARLY TERMINATION OF NONDISCLOSURE ORDER- A nondisclosure order the Government applied for under paragraph (1)(B) ceases to have effect when the Government discovers that the factual basis for that order has ceased to exist and the Government so informs the order’s recipient. The Government upon making such a discovery shall promptly so informs the recipient.’. CommentsClose CommentsPermalink

SEC. 208. MINIMIZATION PROCEDURES.The Attorney General shall.

(a) In General- Not later than 180 days after the date of enactment of this Act, the Attorney General shall-- CommentsClose CommentsPermalink





(1) establish minimization and destruction procedures to ensure that information obtained pursuantprocedures governing the acquisition, retention, and dissemination by the Federal Bureau of Investigation of any records received by the Federal Bureau of Investigation in response to a national security letter regarding persons that are no longer of interest in an authorized investigation is destroyed. Such procedures shall be transmitted to the Permanent Select Committee on Intelligence and the Committee on the Judiciary; and CommentsClose CommentsPermalink





(2) submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate in unclassified format within 3 months of passage, and shall include-- copy of the minimization procedures established under paragraph (1). CommentsClose CommentsPermalink





(b) Definitions- In this section-- CommentsClose CommentsPermalink





(1) the term ‘minimization procedures’ means-- CommentsClose CommentsPermalink





(A) specific procedures, that are reasonably designed in light of the purpose and technique of the particular surveillancea national security letter, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons (as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801)) consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; CommentsClose CommentsPermalink





(2) procedures that provide for the destruction of information relating to United States persons that do not reflect activity that would lead a reasonable agent or analyst to believe that the person is an agent of a foreign power B) procedures that require that nonpublicly available information, which is not foreign intelligence information (as defined in section 101(e)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b));(3) procedures for identifying whether the information returned in response to ae)(1))) shall not be disseminated in a manner that identifies any United States person, without the consent of the United States person, unless the identity of the United States person is necessary to understand foreign intelligence information or assess its importance; and CommentsClose CommentsPermalink





(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and CommentsClose CommentsPermalink





(2) the term ‘national security letter’ means a request for information issued undersection 2709 of title 18, United States Code, section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(5)), subsection (a) or (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u), or section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v). CommentsClose CommentsPermalink

Section 118(c) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (18 U.S.C. 3511 note) is amended-- CommentsClose CommentsPermalink





(1) in paragraph (1)-- CommentsClose CommentsPermalink





(A) in the matter preceding subparagraph (A), by striking ‘concerning different United States persons’; and CommentsClose CommentsPermalink





(B) in subparagraph (A), by striking ‘, excluding the number of requests for subscriber information’; CommentsClose CommentsPermalink





(2) by redesignating paragraph (2) as paragraph (3); and CommentsClose CommentsPermalink





(3) by inserting after paragraph (1) the following: CommentsClose CommentsPermalink





‘(2) CONTENT- CommentsClose CommentsPermalink





‘(A) IN GENERAL- Except as provided in subparagraph (B), each report required under this subsection shall include the total number of requests described in paragraph (1) requiring disclosure of information concerning-- CommentsClose CommentsPermalink





‘(i) United States persons; CommentsClose CommentsPermalink





‘(ii) persons who are not United States persons; CommentsClose CommentsPermalink





‘(iii) persons who are the subjects of authorized national security letter exceeds the scope of the original request and further procedures for returning or destroying the superfluous information as soon as possible and before it is entered into any database or used in any way; and

(4) deadlines for destruction, minimization, or return of information described in paragraphs (1) through (3), that require such destruction, minimization, or return as soon as possible.

investigations; or CommentsClose CommentsPermalink




‘(iv) persons who are not the subjects of authorized national security investigations. CommentsClose CommentsPermalink





‘(B) EXCEPTION- With respect to the number of requests for subscriber information undersection 2709 of title 18, United States Code, a report required under this subsection need not provide information separated into each of the categories described in subparagraph (A).’. CommentsClose CommentsPermalink