< Back to H.R. 3189 (110th Congress, 2007–2009)

Text of the National Security Letters Reform Act of 2007

This bill was introduced on July 26, 2007, in a previous session of Congress, but was not enacted. The text of the bill below is as of Jul 26, 2007 (Introduced).

Source: GPO

I

110th CONGRESS

1st Session

H. R. 3189

IN THE HOUSE OF REPRESENTATIVES

July 26, 2007

(for himself, Mr. Flake, Mr. Delahunt, Mr. Paul, Mr. Mack, Mr. Boucher, Mr. Cohen, Mr. Ellison, Mr. Wexler, Ms. Harman, Mr. Farr, Ms. Linda T. Sánchez of California, Mr. Scott of Virginia, and Ms. Wasserman Schultz) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the 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 concerned

A BILL

To establish reasonable procedural protections for the use of national security letters, and for other purposes.

1.

Short title

This Act may be cited as the National Security Letters Reform Act of 2007.

2.

National security letter defined

In this Act, 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 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) (to obtain certain financial information and consumer reports).

(4)

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

3.

Procedural protections for national security letters

(a)

Standard

A national security letter may not be issued unless the official having authority under law to issue such a letter certifies that there are specific and articulable facts giving reason to believe that the information or records sought by that letter pertain to a foreign power or agent of a foreign power.

(b)

Limitation regarding first amendment activities

A national security letter may not be issued in connection with an investigation of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States in accordance with the Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations.

(c)

Other limitations

(1)

Letter may not contain unreasonable requirements or require privileged matter

A national security letter may not—

(A)

contain any requirement which would be held to be unreasonable if contained in a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation of espionage or international terrorism; or

(B)

require the production of any documentary evidence which would be privileged from disclosure if demanded by a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation of espionage or international terrorism.

(2)

Notice of rights

A national security letter shall provide notice of the recipient’s right to seek judicial review and explain the procedures for doing so.

(d)

Nondisclosure

(1)

In general

No recipient, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under a national security letter for 30 days after receipt of such request from the Bureau.

(2)

Exception

A recipient, or officer, employee, or agent thereof, of a national security letter may disclose that the Federal Bureau of Investigation has sought or obtained access to information or records under this section to—

(A)

those persons to whom disclosure is necessary in order to comply with an order under this section; or

(B)

an attorney in order to obtain legal advice regarding such order.

(3)

Extension

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 of a Bureau field office designated by the Director, may apply for an order prohibiting disclosure that the Federal Bureau of Investigation has sought or obtained access to information or records under this section for not more than 180 days after the order is issued.

(4)

Jurisdiction

An application for an order pursuant to this subsection shall be filed in the district court of the United States in any district within which the authorized investigation that is the basis for a request pursuant to this section is being conducted.

(5)

Application contents

An application for an order pursuant to this subsection must state specific and articulable facts giving the applicant reason to believe that disclosure that the Federal Bureau of Investigation has sought or obtained access to information or records under this section will result in—

(A)

endangering the life or physical safety of any person;

(B)

flight from prosecution;

(C)

destruction of or tampering with evidence;

(D)

intimidation of potential witnesses; or

(E)

otherwise seriously endangering the national security of the United States by alerting a target, a target’s associates, or the foreign power of which the target is an agent, of the Government’s interest in the target.

(6)

Standard

The court may issue an ex parte order in response to an application under paragraph (3) if the court determines that the order is narrowly tailored to meet a compelling interest and that there is reason to believe that disclosure that the Federal Bureau of Investigation has sought or obtained access to information or records under this section will have one of the results described in paragraph (5).

(7)

Renewal

An order under this subsection may be renewed for additional periods of not more than 180 days upon another application meeting the requirements of paragraph (5) and a determination by the court that the standard of paragraph (6) continues to be met.

(8)

Conforming amendments

(A)

Section 2709 of title 18, United States Code, is amended by striking subsection (c).

(B)

Section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)) is amended by striking subparagraph (D).

(C)

Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) is amended by striking subsection (d).

(D)

Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) is amended by striking subsection (c).

(e)

Judicial review

(1)

Petition

Not later than 20 days after any person receives a national security, or at any time before the return date specified in the letter, whichever period is longer, such person may file, in the district court of the United States for the judicial district within which such person resides, is found, or transacts business, a petition for such court to modify or set aside such letter. The time allowed for compliance with the letter in whole or in part as deemed proper and ordered by the court shall not run while the petition is pending in the court. The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the letter to comply with this section or upon any constitutional or other legal right or privilege of such person.

(2)

Nondisclosure

(A)

In general

A person prohibited by law from disclosing information about the national security letter may file, in the district court of the United States for the judicial district within which such person resides, is found, or transacts business, a petition for the court to set aside the nondisclosure requirement. Such petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the nondisclosure requirement to comply with this section or upon any constitutional or other legal right or privilege of such person.

(B)

Standard

The court shall set aside the nondisclosure requirement unless the court determines that the nondisclosure requirement complies with this section and does not violate any constitutional or other legal right or privilege of such person.

(3)

Disclosure of classified material

In making a determination under this subsection, unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case, the court shall disclose to the petitioner, the counsel of the petitioner, or both, under the procedures and standards provided in the Classified Information Procedures Act (18 U.S.C. App.), any classified portions of the application, order, or other related materials.

(f)

Use of information

(1)

In general

(A)

Consent

Information acquired from a national security letter 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 this subsection.

(B)

Lawful purpose

No information acquired by a national security letter may be used or disclosed by Federal officers or employees except for lawful purposes.

(2)

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.

(3)

Notification of intended disclosure by the United States

Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States against an aggrieved person any information obtained by or derived from a national security letter, the United States shall, before the trial, hearing, or other proceeding or at a reasonable time before an effort to so disclose or so use this information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.

(4)

Notification of intended disclosure by State or political subdivision

Whenever a State or political subdivision of a State intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the State or political subdivision against an aggrieved person any information obtained or derived from a request pursuant to this section, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.

(5)

Motion to suppress

(A)

In general

Any aggrieved person against whom evidence obtained or derived from a national security letter is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, or a State or political subdivision thereof, may move to suppress the evidence obtained or derived from the request, as the case may be, on the grounds that—

(i)

the information was acquired in violation of the Constitution or laws of the United States; or

(ii)

the request was not in conformity with the requirements of this section.

(B)

Timing

A motion under subparagraph (A) shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the aggrieved person concerned was not aware of the grounds of the motion.

(6)

Judicial review

(A)

In general

Whenever—

(i)

a court or other authority is notified pursuant to paragraph (3) or (4);

(ii)

a motion is made pursuant to paragraph (5); or

(iii)

any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to—

(I)

discover or obtain materials relating to a request issued pursuant to this section; or

(II)

discover, obtain, or suppress evidence or information obtained or derived from a request issued pursuant to this section;

the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other provision of law and if the Attorney General files an affidavit under oath that disclosure would harm the national security of the United States, review in camera the materials as may be necessary to determine whether the request was lawful.
(B)

Disclosure

In making a determination under subparagraph (A), unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case, the court shall disclose to the aggrieved person, the counsel of the aggrieved person, or both, under the procedures and standards provided in the Classified Information Procedures Act (18 U.S.C. App.), any classified portions of the application, order, or other related materials, or evidence or information obtained or derived from the order.

(7)

Effect of determination of lawfulness

(A)

Unlawful orders

If the United States district court determines pursuant to paragraph (6) that the national security letter was not in compliance with the Constitution or laws of the United States, the court may, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the request or otherwise grant the motion of the aggrieved person.

(B)

Lawful orders

If the court determines that the request was lawful, it may deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.

(8)

Binding final orders

Orders granting motions or requests under paragraph (6), decisions under this section that a national security letter was not lawful, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other related materials shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals or the Supreme Court.

(g)

Definitions

In this Act and in each provision of law authorizing national security letters—

(1)

the term agent of a foreign power has the meaning given such term by section 101(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b));

(2)

the term aggrieved person means a person whose name, address, length of service, or local or long distance toll records were sought or obtained under this section; and

(3)

the term foreign power has the meaning given such term by section 101(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)).

4.

Cause of action for misuse of national security letters

A person to whom records requested by a national security letter pertains may, in a civil action against any person issuing or obtaining the issuing of such letter, obtain money damages equal to the greater of the actual damages or $50,000, if the national security letter was issued contrary to law or the certification on which is was based was without factual foundation.

5.

Sunset of Patriot Act changes to national security letter authority

(a)

In general

The authority to issue national security letters shall revert 5 years after the date of the enactment of this Act to that provided by law on October 25, 2001.

(b)

Report

Not later than the date on which the authority to issue national security letters ceases under this Act, the Attorney General shall report to Congress on whether, and if so, how, the authority to issue national security letters furthered investigations as compared to alternative methods for obtaining relevant information.

6.

Minimization procedures, disposal of wrongly acquired information, and Congressional reporting

(a)

Minimization Procedures

The Attorney General shall establish minimization and destruction procedures to ensure that information obtained pursuant 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 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—

(1)

specific procedures, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(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 as defined in 50 U.S.C. 1801(b);

(3)

procedures for identifying whether the information returned in response to a 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.

(b)

Disposal of wrongly acquired information

Each authority of the Government shall have the duty to dispose of all private information obtained without legal authority under color of a national security letter.

(c)

Report

The Attorney General shall, semiannually, submit to the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate a unclassified report containing—

(1)

the total number of national security letters issued during the preceding six months, in unclassified form;

(2)

for each of the laws authorizing national security letters, the total number of national security letters issued during the preceding six months under the authority of that law;

(3)

for each of the laws authorizing national security letters, the total number of national security letters issued during the preceding six months under the authority of that law for United States persons;

(4)

for each of the laws authorizing national security letters, the total number of national security letters issued during the preceding six months under the authority of each such subparagraph for non-United States persons;

(5)

a description of the minimization procedures adopted by the Attorney General pursuant to subsection (c), including any changes to minimization procedures previously adopted by the Attorney General;

(6)

a summary of the challenges made by recipients of national security letters in court;

(7)

a description of the extent to which information obtained with national security letters has aided investigations and an explanation of how such information has aided such investigations; and

(8)

a description of the extent to which information obtained with national security letters has aided prosecutions and an explanation of how such information has been used in or aided such prosecutions.

7.

Requirements relating to claims of emergency in connection with certain national security letters

Section 2702 of title 18, United States Code, is amended—

(1)

in subsection (b), so that paragraph (8) reads as follows:

(8)

to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information;

;

(2)

in subsection (c), so that paragraph (4) reads as follows:

(4)

to a governmental entity if the provider has a reasonable belief that an emergency involving the imminent danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;

; and

(3)

so that subsection (d) reads as follows:

(d)

Reporting of emergency disclosures

On a semiannual basis the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing—

(1)

the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8), and a summary of the factual basis for each emergency disclosure; and

(2)

the number and type of communications the Department of Justice has received by voluntary disclosure under subsection (c) (4) , and a summary of the factual basis for each emergency disclosure.

.