S. 2088 (110th): National Security Letter Reform Act of 2007

110th Congress, 2007–2009. Text as of Sep 25, 2007 (Introduced).

Status & Summary | PDF | Source: GPO

II

110th CONGRESS

1st Session

S. 2088

IN THE SENATE OF THE UNITED STATES

September 25, 2007

(for himself, Mr. Sununu, Mr. Durbin, Ms. Murkowski, Mr. Salazar, and Mr. Hagel) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To place reasonable limitations on the use of National Security Letters, and for other purposes.

1.

Short title and table of contents

(a)

Short title

This Act may be cited as the National Security Letter Reform Act of 2007 or the NSL Reform Act of 2007.

(b)

Table of Contents

The table of contents for this Act is as follows:

Sec. 1. Short title and table of contents.

Sec. 2. National Security Letter authority for communications subscriber records.

Sec. 3. National Security Letter authority for certain financial records.

Sec. 4. National Security Letter authority for certain consumer report records.

Sec. 5. Judicial review of National Security Letters.

Sec. 6. National Security Letter compliance program and tracking database.

Sec. 7. Public reporting on National Security Letters.

Sec. 8. Sunset of expanded National Security Letter authorities.

Sec. 9. Privacy protections for section 215 business records orders.

Sec. 10. Judicial review of section 215 orders.

Sec. 11. Resources for FISA applications.

Sec. 12. Enhanced protections for emergency disclosures.

Sec. 13. Clarification regarding data retention.

Sec. 14. Least intrusive means.

2.

National security letter authority for communications subscriber records

Section 2709 of title 18, United States Code, is amended to read as follows:

2709.

National Security Letter for communications subscriber records

(a)

Authorization

(1)

In general

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 Special Agent in Charge of a Bureau field office, may issue in writing and cause to be served on a wire or electronic communications service provider a National Security Letter requiring the production of the following:

(A)

The name of the customer or subscriber.

(B)

The address of the customer or subscriber.

(C)

The length of the provision of service by such provider to the customer or subscriber (including start date) and the types of service utilized by the customer or subscriber.

(D)

The telephone number or instrument number, or other subscriber number or identifier, of the customer or subscriber, including any temporarily assigned network address.

(E)

The means and sources of payment for such service (including any credit card or bank account number).

(F)

Information about any service or merchandise orders, including any shipping information and vendor locations.

(G)

The name and contact information, if available, of any other wire or electronic communications service providers facilitating the communications of the customer or subscriber.

(2)

Limitation

A National Security Letter issued pursuant to this section shall not require the production of local or long distance telephone records or electronic communications transactional information not listed in paragraph (1).

(b)

Requirements

(1)

In general

A National Security Letter shall be issued under subsection (a) only where—

(A)

the records sought are relevant to an ongoing, authorized and specifically identified national security investigation (other than a threat assessment); and

(B)

there are specific and articulable facts providing reason to believe that the records—

(i)

pertain to a suspected agent of a foreign power; or

(ii)

pertain to an individual who has been in contact with, or otherwise directly linked to, a suspected agent of a foreign power who is the subject of an ongoing, authorized and specifically identified national security investigation (other than a threat assessment); or

(iii)

pertain to the activities of a suspected agent of a foreign power, where those activities are the subject of an ongoing, authorized and specifically identified national security investigation (other than a threat assessment), and obtaining the records is the least intrusive means that could be used to identify persons believed to be involved in such activities.

(2)

Investigation

For purposes of this section, an ongoing, authorized, and specifically identified national security investigation—

(A)

shall be conducted under guidelines approved by the Attorney General and Executive Order 12333 (or successor order); and

(B)

shall not be conducted with respect to a United States person upon the basis of activities protected by the first amendment to the Constitution of the United States.

(3)

Contents

A National Security Letter issued under subsection (a) shall—

(A)

describe the records to be produced with sufficient particularity to permit them to be fairly identified;

(B)

include the date on which the records must be provided, which shall allow a reasonable period of time within which the records can be assembled and made available;

(C)

provide clear and conspicuous notice of the principles and procedures set forth in this section, including notification of any nondisclosure requirement under subsection (c) and a statement laying out the rights and responsibilities of the recipient; and

(D)

not contain any requirement that 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 or require the production of any documentary evidence that 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.

(4)

Retention of records

The Director of the Federal Bureau of Investigation shall direct that a signed copy of each National Security Letter issued under this section be retained in the database required to be established by section 6 of the National Security Letter Reform Act of 2007.

(c)

Prohibition of certain disclosure

(1)

In general

(A)

In general

If a certification is issued pursuant to subparagraph (B), no wire or electronic communication service provider, or officer, employee, or agent thereof, who receives a National Security Letter under this section, shall disclose to any person the particular information specified in such certification for 30 days after receipt of such National Security Letter.

(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—

(i)

there is reason to believe that disclosure of particular information about the existence or contents of a National Security Letter issued under this section will result in—

(I)

endangering the life or physical safety of any person;

(II)

flight from prosecution;

(III)

destruction of or tampering with evidence;

(IV)

intimidation of potential witnesses;

(V)

interference with diplomatic relations; or

(VI)

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; and

(ii)

the nondisclosure requirement is narrowly tailored to address the specific harm identified by the Government.

(C)

Termination

If the facts supporting a nondisclosure requirement cease to exist prior to the 30-day period specified in subparagraph (A), 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 such nondisclosure requirement is no longer in effect.

(2)

Exception

(A)

In general

A wire or electronic communication service provider, or officer, employee, or agent thereof, who receives a National Security Letter under this section may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with a National Security Letter under this section;

(ii)

an attorney in order to obtain legal advice or assistance regarding such National Security Letter; or

(iii)

other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.

(B)

Nondisclosure requirement

A person to whom disclosure is made pursuant to subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a National Security Letter is directed under this section in the same manner as such person.

(C)

Notice

Any recipient who discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall inform such person of the applicable nondisclosure requirement.

(3)

Extension

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, may apply for an order prohibiting disclosure of particular information about the existence or contents of a National Security Letter issued under this section for an additional 180 days.

(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 shall include—

(A)

a statement of specific and articulable facts giving the applicant reason to believe that disclosure of particular information about the existence or contents of a National Security Letter issued under this section will result in—

(i)

endangering the life or physical safety of any person;

(ii)

flight from prosecution;

(iii)

destruction of or tampering with evidence;

(iv)

intimidation of potential witnesses;

(v)

interference with diplomatic relations; or

(vi)

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; and

(B)

an explanation of how the nondisclosure requirement is narrowly tailored to address the specific harm identified by the Government.

(6)

Standard

The court may issue an ex parte order pursuant to this subsection if the court determines—

(A)

there is reason to believe that disclosure of particular information about the existence or contents of a National Security Letter issued under this section will result in—

(i)

endangering the life or physical safety of any person;

(ii)

flight from prosecution;

(iii)

destruction of or tampering with evidence;

(iv)

intimidation of potential witnesses;

(v)

interference with diplomatic relations; or

(vi)

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; and

(B)

the nondisclosure requirement is narrowly tailored to address the specific harm identified by the Government.

(7)

Renewal

An order under this subsection may be renewed for additional periods of up to 180 days upon another application meeting the requirements of paragraph (5) and a determination by the court that the circumstances described in paragraph (6) continue to exist.

(8)

Termination

If the facts supporting a nondisclosure requirement cease to exist prior to the expiration of the time period imposed by a court for that nondisclosure requirement, an appropriate official of the Federal Bureau of Investigation shall promptly notify the court, and the court shall terminate such nondisclosure requirement.

(d)

Minimization and destruction

(1)

In general

Not later than 180 days after the enactment of this section, the Attorney General shall establish minimization and destruction procedures governing the 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 under this section.

(2)

Definition

In this section, the term minimization and destruction procedures means—

(A)

specific procedures that are reasonably designed in light of the purpose and technique of a National Security Letter, 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, including procedures to ensure that information obtained pursuant to a National Security Letter regarding persons no longer of interest in an authorized investigation, or information obtained pursuant to a National Security Letter that does not meet the requirements of this section or is outside the scope of such National Security Letter, is returned or destroyed;

(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, 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.

(e)

Requirement that certain congressional bodies be informed

(1)

In general

On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the Senate and the Select Committee on Intelligence of the House of Representatives, and the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, concerning all requests made under this section.

(2)

Contents

The report required by paragraph (1) shall include—

(A)

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

(B)

a summary of the court challenges brought pursuant to section 3511 of title 18, United States Code, by recipients of National Security Letters;

(C)

a description of the extent to which information obtained with National Security Letters under this section has aided intelligence investigations and an explanation of how such information has aided such investigations; and

(D)

a description of the extent to which information obtained with National Security Letters under this section has aided criminal prosecutions and an explanation of how such information has aided such prosecutions.

(f)

Use of information

(1)

In general

(A)

Consent

Any information acquired from a National Security Letter pursuant to this section 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 and destruction procedures required by this section.

(B)

Lawful purpose

No information acquired from a National Security Letter pursuant to this section may be used or disclosed by Federal officers or employees except for lawful purposes.

(2)

Disclosure for law enforcement purposes

No information acquired pursuant to this section 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 or derived from a National Security Letter pursuant to this section, 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 any State or political subdivision thereof 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 thereof against an aggrieved person any information obtained or derived from a National Security Letter 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 pursuant to this section 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 National Security Letter, 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 National Security Letter was not issued 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 National Security Letter issued pursuant to this section; or

(II)

discover, obtain, or suppress evidence or information obtained or derived from a National Security Letter 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.) or other applicable law, 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 National Security Letter or otherwise grant the motion of the aggrieved person.

(B)

Lawful orders

If the court determines that the National Security Letter 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

As used in this section—

(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 information or 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)).

.

3.

National Security Letter authority for certain financial records

Section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414) is amended to read as follows:

1114.

National Security Letter for certain financial records

(a)

Authorization

(1)

In general

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 Special Agent in Charge of a Bureau field office, may issue in writing and cause to be served on a financial institution, a National Security Letter requiring the production of—

(A)

the name of the customer or entity with whom the financial institution has a financial relationship;

(B)

the address of the customer or entity with whom the financial institution has a financial relationship;

(C)

the length of time during which the customer or entity has had an account or other financial relationship with the financial institution (including the start date) and the type of account or other financial relationship; and

(D)

any account number or other unique identifier associated with the financial relationship of the customer or entity to the financial institution.

(2)

Limitation

A National Security Letter issued pursuant to this section may require the production only of records identified in subparagraphs (A) through (D) of paragraph (1).

(b)

National Security Letter requirements

(1)

In general

A National Security Letter issued under this section shall be subject to the requirements of subsections (b) through (g) of section 2709 of title 18, United States Code, in the same manner and to the same extent as those provisions apply with respect to wire and electronic communication service providers.

(2)

Reporting

For purposes of this section, the reporting requirement in section 2709(e) of title 18, United States Code, shall also require informing the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives.

(c)

Definition of financial institution

For purposes of this section, section 1115, and section 1117, 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.

.

4.

National Security Letter authority for certain consumer report records

Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) is amended—

(1)

by striking the section heading and inserting the following:

626.

National Security Letters for certain consumer report records

;

(2)

by striking subsections (a) through (d) and inserting the following:

(a)

Authorization

(1)

In general

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 Special Agent in Charge of a Bureau field office, may issue in writing and cause to be served on a consumer reporting agency a National Security Letter requiring the production of—

(A)

the name of a consumer;

(B)

the current and former address of a consumer;

(C)

the current and former places of employment of a consumer; and

(D)

the names and addresses of all financial institutions (as that term is defined in section 1101 of the Right to Financial Privacy Act of 1978) at which a consumer maintains or has maintained an account, to the extent that such information is in the files of the consumer reporting agency.

(2)

Limitation

A National Security Letter issued pursuant to this section may not require the production of a consumer report.

(b)

National Security Letter requirements

(1)

In general

A National Security Letter issued under this section shall be subject to the requirements of subsections (b) through (g) of section 2709 of title 18, United States Code, in the same manner and to the same extent as those provisions apply with respect to wire and electronic communication service providers.

(2)

Reporting

For purposes of this section, the reporting requirement in section 2709(e) of title 18, United States Code, shall also require informing the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives.

;

(3)

by striking subsections (f) through (h); and

(4)

by redesignating subsections (e) and (i) through (m) as subsections (c) through (h), respectively.

5.

Judicial review of National Security Letters

(a)

Review of nondisclosure orders

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

(b)

Nondisclosure

(1)

In general

The recipient of a request for records or other information under section 2709 of this title, section 626 of the Fair Credit Reporting Act, section 1114 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) to modify or set aside a nondisclosure requirement imposed in connection with such a request. 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 the provisions of section 2709 of this title, section 626 of the Fair Credit Reporting Act, section 1114 of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, or upon any constitutional or other legal right or privilege of such person.

(2)

Standard

The court shall modify or set aside the nondisclosure requirement unless the court determines that—

(A)

there is a reason to believe that disclosure of the information subject to the nondisclosure requirement will result in—

(i)

endangering the life or physical safety of any person;

(ii)

flight from prosecution;

(iii)

destruction of or tampering with evidence;

(iv)

intimidation of potential witnesses;

(v)

interference with diplomatic relations; or

(vi)

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; and

(B)

the nondisclosure requirement is narrowly tailored to address the specific harm identified by the Government.

.

(b)

Disclosure

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

(d)

Disclosure

In making determinations under this section, 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.) or other applicable law, portions of the application, National Security Letter, or other related materials.

.

(c)

Conforming amendments

Section 3511 of title 18, United States Code, is amended—

(1)

in subsection (a), by—

(A)

inserting after (a) the following Request.—;

(B)

striking 2709(b) and inserting 2709;

(C)

striking 626(a) or (b) or 627(a) and inserting 626; and

(D)

striking 1114(a)(5)(A) and inserting 1114; and

(2)

in subsection (c), by—

(A)

inserting after (c) the following Failure to comply.—;

(B)

by striking 2709(b) and inserting 2709;

(C)

by striking 626(a) or (b) or 627(a) and inserting 626; and

(D)

by striking 1114(a)(5)(A) and inserting 1114.

(d)

Repeal

Section 3511(e) of title 18, United States Code, is repealed.

6.

National Security Letter compliance program and tracking database

(a)

Compliance program

The Director of the Federal Bureau of Investigation shall establish a program to ensure compliance with the amendments made by sections 2, 3, and 4 of this Act.

(b)

Tracking database

The compliance program required by subsection (a) shall include the establishment of a database, the purpose of which shall be to track all National Security Letters issued by the Federal Bureau of Investigation under section 1114 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414), section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u), and section 2709 of title 18, United States Code.

(c)

Information

The database required by this section shall include—

(1)

a signed copy of each National Security Letter;

(2)

the date the National Security Letter was issued and for what type of information;

(3)

whether the National Security Letter seeks information regarding a United States person or non-United States person;

(4)

the ongoing, authorized, and specifically identified national security investigation (other than a threat assessment) to which the National Security Letter relates;

(5)

whether the National Security Letter seeks information regarding an individual who is the subject of such investigation;

(6)

when the information requested was received and, if applicable, when it was destroyed; and

(7)

whether the information gathered was disclosed for law enforcement purposes.

7.

Public reporting on National Security Letters

Section 118(c) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177) is amended—

(1)

in paragraph (1)—

(A)

by striking concerning different United States persons; and

(B)

in subparagraph (A), by striking , excluding the number of requests for subscriber information;

(2)

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

(3)

by inserting after paragraph (1) the following:

(2)

Content

The report required by this subsection shall include the total number of requests described in paragraph (1) requiring disclosure of information concerning—

(A)

United States persons;

(B)

non-United States persons;

(C)

persons who are the subjects of authorized national security investigations; and

(D)

persons who are not the subjects of authorized national security investigations.

.

8.

Sunset of expanded National Security Letter authorities

Subsection 102(b) of Public Law 109–177 is amended to read as follows:

(b)

Sections 206, 215, 358(g), 505 sunset

(1)

In general

Effective December 31, 2009, the following provisions are amended to read as they read on October 25, 2001—

(A)

sections 501, 502, and 105(c)(2) of the Foreign Intelligence Surveillance Act of 1978;

(B)

section 2709 of title 18, United States Code;

(C)

sections 626 and 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u, 1681v); and

(D)

section 1114 of the Right to Financial Privacy Act (12 U.S.C. 3414).

(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.

.

9.

Privacy protections for section 215 business records orders

(a)

In general

Section 501(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(b)(2)) is amended—

(1)

in paragraph (1)(B), by striking and after the semicolon;

(2)

in paragraph (2)—

(A)

in subparagraph (A), by striking , such things being presumptively through the end of the subparagraph and inserting a semicolon;

(B)

by redesignating subparagraph (B) as subparagraph (C) and striking the period at the end and inserting ; and; and

(C)

by inserting after subparagraph (A) the following:

(B)

a statement of specific and articulable facts providing reason to believe that the tangible things sought—

(i)

pertain to a suspected agent of a foreign power; or

(ii)

pertain to an individual who has been in contact with, or otherwise directly linked to, a suspected agent of a foreign power if the circumstances of that contact or link suggest that the records sought will be relevant to an ongoing, authorized and specifically identified national security investigation (other than a threat assessment) of that suspected agent of a foreign power; and

; and

(3)

by inserting at the end the following:

(3)

if the applicant is seeking a nondisclosure requirement described in subsection (d), shall include—

(A)

a statement of specific and articulable facts providing reason to believe that disclosure of particular information about the existence or contents of the order requiring the production of tangible things under this section will result in—

(i)

endangering the life or physical safety of any person;

(ii)

flight from prosecution;

(iii)

destruction of or tampering with evidence;

(iv)

intimidation of potential witnesses;

(v)

interference with diplomatic relations; or

(vi)

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; and

(B)

an explanation of how the nondisclosure requirement is narrowly tailored to address the specific harm identified by the Government.

.

(b)

Order

Section 501(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(c)) is amended—

(1)

in paragraph (1), by—

(A)

striking subsections (a) and (b) and inserting subsection (a) and paragraphs (1) and (2) of subsection (b); and

(B)

inserting at the end the following: If the judge finds that the requirements of subsection (b)(3) have been met, such order shall include a nondisclosure requirement subject to the principles and procedures described in subsection (d); and

(2)

in paragraph (2)(C), by inserting before the semicolon , if applicable.

(c)

Nondisclosure

Section 501(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(d)) is amended to read as follows:

(d)

Nondisclosure

(1)

In general

No person who receives an order under subsection (c) that contains a nondisclosure requirement shall disclose to any person the particular information specified in such nondisclosure requirement for 180 days after receipt of such order.

(2)

Exception

(A)

Disclosure

A person who receives an order under subsection (c) that contains a nondisclosure requirement may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

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

(ii)

an attorney in order to obtain legal advice or assistance regarding such order; or

(iii)

other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.

(B)

Application

A person to whom disclosure is made pursuant to subparagraph (A) 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.

(C)

Notification

Any person who discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall notify such person of the applicable nondisclosure requirement.

(3)

Extension

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 apply for renewals for the prohibition on disclosure of particular information about the existence or contents of an order requiring the production of tangible things under this section for additional periods of up to 180 days each. Such nondisclosure requirement shall be renewed if a court having jurisdiction pursuant to paragraph (4) determines that the application meets the requirements of subsection (b)(3).

(4)

Jurisdiction

An application for a renewal pursuant to this subsection shall be made to—

(A)

a judge of the court established under section 103(a); 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 the court established under section 103(a).

.

(d)

Use of information

Section 501(h) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended to read as follows:

(h)

Use of information

(1)

In general

(A)

Consent

Any tangible things or information acquired from an order pursuant to this section 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 required by this section.

(B)

Use and disclosure

No tangible things or information acquired from an order pursuant to this section may be used or disclosed by Federal officers or employees except for lawful purposes.

(2)

Disclosure for law enforcement purposes

No tangible things or information acquired pursuant to this section shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such tangible things or 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 tangible things or information obtained or derived from an order pursuant to this section, 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 the tangible things or information or submit them in evidence, notify the aggrieved person and the court or other authority in which the tangible things or information are to be disclosed or used that the United States intends to so disclose or so use such tangible things or information.

(4)

Notification of intended disclosure by State or political subdivision

Whenever any State or political subdivision thereof 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 thereof against an aggrieved person any tangible things or information obtained or derived from an order pursuant to this section, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the tangible things or information are to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such tangible things or information.

(5)

Motion to suppress

(A)

In general

Any aggrieved person against whom evidence obtained or derived from an order pursuant to this section 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 order, as the case may be, on the grounds that—

(i)

the tangible things or information were acquired in violation of the Constitution or laws of the United States; or

(ii)

the order was not issued 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 applications, orders, or other materials relating to an order issued pursuant to this section; or

(II)

discover, obtain, or suppress evidence or information obtained or derived from an order 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 application, order, and such other related materials as may be necessary to determine whether the order was lawfully authorized and served.
(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.) or other applicable law, 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 order was not authorized or served 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 order or otherwise grant the motion of the aggrieved person.

(B)

Lawful orders

If the court determines that the order was lawfully authorized and served, 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 an order was not lawfully authorized or served, 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.

.

(e)

Definition

Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by adding at the end the following:

503.

Definitions

In this title, the following definitions apply:

(1)

In general

Except as provided in this section, terms used in this title that are also used in title I shall have the meanings given such terms by section 101.

(2)

Aggrieved person

The term aggrieved person means any person whose tangible things or information were acquired pursuant to an order under this title.

.

10.

Judicial review of section 215 orders

Section 501(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended to read as follows:

(f)

Judicial review

(1)

Order for production

Not later than 20 days after the service upon any person of an order pursuant to subsection (c), or at any time before the return date specified in the order, whichever period is shorter, such person may file, in the court established under section 103(a) or 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 order. The time allowed for compliance with the order in whole or in part as deemed proper and ordered by the court shall not run during the pendency of such petition in the court. Such petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of such order to comply with the provisions of this section or upon any constitutional or other legal right or privilege of such person.

(2)

Nondisclosure order

(A)

In general

A person prohibited from disclosing information under subsection (d) may file, in the courts established by section 103(a) or 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 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 the provisions of this section or upon any constitutional or other legal right or privilege of such person.

(B)

Standard

The court shall modify or set aside the nondisclosure requirement unless the court determines that—

(i)

there is reason to believe that disclosure of the information subject to the nondisclosure requirement will result in—

(I)

endangering the life or physical safety of any person;

(II)

flight from prosecution;

(III)

destruction of or tampering with evidence;

(IV)

intimidation of potential witnesses;

(V)

interference with diplomatic relations; or

(VI)

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; and

(ii)

the nondisclosure requirement is narrowly tailored to address the specific harm identified by the Government.

(3)

Rulemaking

(A)

In general

Not later than 180 days after the date of enactment of the National Security Letter Reform Act of 2007, the courts established pursuant to section 103(a) shall establish such rules and procedures and take such actions as are reasonably necessary to administer their responsibilities under this subsection.

(B)

Reporting

Not later than 30 days after promulgating rules and procedures under subparagraph (A), the courts established pursuant to section 103(a) shall transmit a copy of the rules and procedures, unclassified to the greatest extent possible (with a classified annex, if necessary), 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.

(4)

Disclosures to petitioners

In making determinations 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.) or other applicable law, portions of the application, order, or other related materials.

.

11.

Resources for FISA applications

(a)

Electronic filing

(1)

In general

The Department of Justice shall establish a secure electronic system for the submission of documents and other information to the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) relating to applications for orders under chapter 36 of title 50, authorizing electronic surveillance, physical searches, the use of pen register and trap and trace devices, and the production of tangible things.

(2)

Funding source

Section 1103(4) of the Violence Against Women and Department of Justice Reauthorization Act of 2005 is amended—

(A)

in subparagraph (C), by striking and after the semicolon;

(B)

in subparagraph (D), by striking the period and inserting ; and; and

(C)

by adding at the end the following:

(E)

$5,000,000 for the implementation of the secure electronic filing system established by Section 11(a)(1) of the National Security Letter Reform Act.

.

(b)

Personnel and information technology needs

(1)

Office of Intelligence Policy and Review

(A)

In general

The Office of Intelligence Policy and Review of the Department of Justice may hire personnel and procure information technology, as needed, to ensure the timely and efficient processing of applications to the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803).

(B)

Funding source

(i)

Section 1103(4) of the Violence Against Women and Department of Justice Reauthorization Act of 2005 is amended—

(I)

in subparagraph (D), by striking and after the semicolon;

(II)

in subparagraph (E), by striking the period and inserting ; and; and

(III)

by adding at the end the following:

(F)

not to exceed $3,000,000 for the personnel and information technology as specified in Section 11(b)(1)(A) of the National Security Letter Reform Act.

.

(ii)

Section 1104(4) of the Violence Against Women and Department of Justice Reauthorization Act of 2005 is amended—

(I)

in subparagraph (C), by striking and after the semicolon;

(II)

in subparagraph (D), by striking the period and inserting ; and; and

(III)

by adding at the end the following:

(E)

not to exceed $3,000,000 for the personnel and information technology as specified in Section 11(b)(1)(A) of the National Security Letter Reform Act.

.

(2)

FBI

(A)

In general

The Federal Bureau of Investigation may hire personnel and procure information technology, as needed, to ensure the timely and efficient processing of applications to the Foreign Intelligence Surveillance Court.

(B)

Funding source

(i)

Section 1103(7) of the Violence Against Women and Department of Justice Reauthorization Act of 2005 is amended by inserting before the period the following: “, and which shall include not to exceed $3,000,000 for the personnel and information technology as specified in Section 11(b)(2)(A) of the National Security Letter Reform Act”.

(ii)

Section 1104(7) of the Violence Against Women and Department of Justice Reauthorization Act of 2005 is amended by inserting before the period the following: “, and which shall include not to exceed $3,000,000 for the personnel and information technology as specified in Section 11(b)(2)(A) of the National Security Letter Reform Act”.

12.

Enhanced protections for emergency disclosures

(a)

Stored communications Act

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

(1)

in subsection (b)(8), by—

(A)

striking , in good faith, and inserting reasonably;

(B)

inserting immediate after involving; and

(C)

adding before the period: “, subject to the limitations of subsection (d) of this section;”;

(2)

in subsection (c)(4) by—

(A)

striking . in good faith, and inserting reasonably;

(B)

inserting immediate after involving; and

(C)

adding before the period: “, subject to the limitations of subsection (d) of this section.”;

(3)

redesignating subsection (d) as subsection (e) and adding after subsection (c) the following:

(d)

Requirement

(1)

Request

If a governmental entity requests that a provider divulge information pursuant to subsection (b)(8) or (c)(4), the request shall specify that the disclosure is on a voluntary basis and shall document the factual basis for believing that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure without delay of the information.

(2)

Notice to court

Within 5 days of obtaining access to records under subsection (b)(8) or (c)(4), the governmental entity shall file with the appropriate court a signed, sworn statement of a supervisory official of a rank designated by the head of the governmental entity setting forth the grounds for the emergency access.

; and

(4)

in subsection (e), as redesignated in paragraphs (1) and (2), by striking subsection (b)(8) and inserting subsections (b)(8) and (c)(4).

(b)

Right to financial privacy Act

(1)

Emergency disclosures

The Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 et seq.) is amended by inserting after section 1120 the following:

1121.

Emergency disclosures

(a)

In general

(1)

Standard

A financial institution (as defined in section 1114(c)) may divulge a record described in section 1114(a) pertaining to a customer to a Government authority, if the financial institution reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.

(2)

Notice in request

If a Government authority requests that a financial institution divulge information pursuant to this section, the request shall specify that the disclosure is on a voluntary basis, and shall document the factual basis for believing that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure without delay of the information.

(b)

Certificate

In the instances specified in subsection (a), the Government shall submit to the financial institution the certificate required in section 1103(b), signed by a supervisory official of a rank designated by the head of the Government authority.

(c)

Notice to court

Within 5 days of obtaining access to financial records under this section, 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 1109.

(d)

Reporting of emergency disclosures

On an annual basis, the Attorney General of the United States shall submit to the Committee on the Judiciary and the Committee on Financial Services of the House of Representatives and the Committee on the Judiciary and the Committee on Banking, Housing, and Urban Affairs of the Senate a report containing—

(1)

the number of individuals for whom the Department of Justice has received voluntary disclosures under this section; and

(2)

a summary of the bases for disclosure in those instances where—

(A)

voluntary disclosures under this section were made to the Department of Justice; and

(B)

the investigation pertaining to those disclosures was closed without the filing of criminal charges.

.

(2)

Conforming amendments

The Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 et seq.) is amended—

(A)

in section 1102 (12 U.S.C. 3402), by striking or 1114 and inserting 1114, or 1121; and

(B)

in section 1109(c) (12 U.S.C. 3409(c)), by striking 1114(b) and inserting 1121.

(c)

Fair Credit Reporting Act

Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) is amended to read as follows:

627.

Emergency disclosures

(a)

In general

(1)

Standard

A consumer reporting agency may divulge identifying information respecting any consumer, limited to the name, address, former addresses, places of employment, or former places of employment of the consumer, to a Government agency, if the consumer reporting agency reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.

(2)

Notice in request

If a Government agency requests that a consumer reporting agency divulge information pursuant to this section, the request shall specify that the disclosure is on a voluntary basis, and shall document the factual basis for believing that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure without delay of the information.

(b)

Notice to court

Within 5 days of obtaining access to identifying information under this section, the Government agency shall file with the appropriate court a signed, sworn statement of a supervisory official of a rank designated by the head of the Government agency setting forth the grounds for the emergency access.

(c)

Reporting of emergency disclosures

On an annual basis, the Attorney General of the United States shall submit to the Committee on the Judiciary and the Committee on Financial Services of the House of Representatives and the Committee on the Judiciary and the Committee on Banking, Housing, and Urban Affairs of the Senate a report containing—

(1)

the number of individuals for whom the Department of Justice has received voluntary disclosures under this section; and

(2)

a summary of the bases for disclosure in those instances where—

(A)

voluntary disclosures under this section were made to the Department of Justice; and

(B)

the investigation pertaining to those disclosures was closed without the filing of criminal charges.

.

13.

Clarification regarding data retention

Subsection 2703(f) of title 18, United States Code, is amended by adding at the end the following:

(3)

A provider of wire or electronic communications services or a remote computing service who has received a request under this subsection shall not disclose the records referred to in paragraph (1) until such provider has received a court order or other process.

.

14.

Least intrusive means

(a)

Guidelines

(1)

In general

The Attorney General shall issue guidelines (consistent with Executive Order 12333 or successor order) instructing that when choices are available between the use of information collection methods in national security investigations that are more or less intrusive, the least intrusive collection techniques feasible are to be used.

(2)

Specific collection techniques

The guidelines required by this section shall provide guidance with regard to specific collection techniques, including the use of national security letters, considering such factors as—

(A)

the effect on the privacy of individuals;

(B)

the potential damage to reputation of individuals; and

(C)

any special First Amendment concerns relating to a potential recipient of a National Security Letter or other legal process, including a direction that prior to issuing such National Security Letter or other legal process to a library or bookseller, investigative procedures aimed at obtaining the relevant information from entities other than a library or bookseller be utilized and have failed, or reasonably appear to be unlikely to succeed if tried or endanger lives if tried.

(b)

Definitions

In this section:

(1)

Bookseller

The term bookseller means a person or entity engaged in the sale, rental, or delivery of books, journals, magazines, or other similar forms of communication in print or digitally.

(2)

Library

The term library means a library (as that term is defined in section 213(2) of the Library Services and Technology Act (20 U.S.C. 9122(2))) whose services include access to the Internet, books, journals, magazines, newspapers, or other similar forms of communication in print or digitally to patrons for their use, review, examination, or circulation.