< Back to H.R. 3845 (111th Congress, 2009–2010)

Text of the USA PATRIOT Amendments Act of 2009

This bill was introduced on November 5, 2009, in a previous session of Congress, but was not enacted. The text of the bill below is as of Jan 29, 2010 (Reported by House Committee).

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Union Calendar No. 240

111th CONGRESS

2d Session

H. R. 3845

[Report No. 111–383, Part I]

IN THE HOUSE OF REPRESENTATIVES

October 20, 2009

(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 concerned

December 16, 2009

Reported from the Committee on the Judiciary with an amendment

Strike out all after the enacting clause and insert the part printed in italic

December 16, 2009

Referral to the Permanent Select Committee on Intelligence and the Committee on Financial Services extended for a period ending not later than January 29, 2010

January 29, 2010

Additional sponsors: Ms. Schakowsky, Mr. Holt, Mr. Michaud, and Ms. Pingree of Maine

January 29, 2010

The Permanent Select Committee on Intelligence and the Committee on Financial Services discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed

For text of introduced bill, see copy of bill as introduced on October 20, 2009

A BILL

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


1.

Short title; table of contents

(a)

Short title

This Act may be cited as the USA PATRIOT Amendments Act of 2009 .

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Title I—USA PATRIOT ACT RELATED AMENDMENTS

Sec. 101. Roving wiretaps.

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

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

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

Sec. 105. Audits.

Sec. 106. Criminal sneak and peek searches.

Sec. 107. Orders for pen registers and trap and trace devices for foreign intelligence purposes.

Sec. 108. Public reporting on the Foreign Intelligence Surveillance Act of 1978.

Sec. 109. Challenges to nationwide orders for electronic evidence.

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

Title II—NATIONAL SECURITY LETTER REFORM

Sec. 201. Short title.

Sec. 202. Sunset.

Sec. 203. National security letter defined.

Sec. 204. Modification of standard.

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

Sec. 206. Disclosure for law enforcement purposes.

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

Sec. 208. Minimization.

Sec. 209. Public reporting on National Security Letters.

Title III—GENERAL PROVISIONS

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

I

USA PATRIOT ACT RELATED AMENDMENTS

101.

Roving wiretaps

Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by striking finds, based upon specific facts and inserting

finds—

(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

(ii)

based upon specific facts

.

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.

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

(1)

In general

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

(A)

in the section heading, by striking certain business records and inserting tangible things; and

(B)

in subsection (b)(2)(A)—

(i)

by striking a statement of facts showing and inserting a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant; and

(ii)

by striking clandestine intelligence activities and all that follows and inserting clandestine intelligence activities;.

(2)

Technical and conforming amendments

(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.

(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:

TITLE V—Access to tangible things for foreign intelligence purposes

Sec. 501. Access to tangible things for foreign intelligence and international terrorism investigations.

.

(b)

Judicial review of FISA orders

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

(1)

in subsection (c)(2)—

(A)

in subparagraph (D) by striking things; and and inserting things;;

(B)

in subparagraph (E), by striking subsection (a). and inserting subsection (a); and; and

(C)

by adding at the end the following new subparagraph:

(F)

shall direct the applicant to provide notice to each person receiving such order of—

(i)

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

(ii)

the procedures to follow to file such petition in accordance with such subsection.

; and

(2)

in subsection (f)(2)—

(A)

in subparagraph (A)—

(i)

in clause (i)—

(I)

by striking a production order and inserting a production order or nondisclosure order; and

(II)

by striking Not less than 1 year and all that follows;

(ii)

in clause (ii), by striking production order or nondisclosure; and

(B)

in subparagraph (C)—

(i)

by striking clause (ii); and

(ii)

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

(c)

Minimization procedures

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

(1)

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

(2)

by inserting after paragraph (1) the following new paragraph:

(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.

.

(d)

Requirements for orders for certain records from libraries

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

(1)

in subsection (b)(2)—

(A)

by redesignating subparagraph (B) as subparagraph (C); and

(B)

by inserting after subparagraph (A) the following new subparagraph:

(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—

(i)

are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

(ii)
(I)

pertain to a foreign power or an agent of a foreign power;

(II)

are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(III)

pertain to an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

; and

(2)

by adding at the end the following new subsection:

(i)

Bookseller information defined

In this section, the term bookseller information means personally identifiable information concerning the purchase (including subscription purchases) or rental of books, journals, or magazines, whether in print or digitally.

.

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—

(1)

in paragraph (1)—

(A)

by striking the amendment made by subsection (a) shall cease to have effect and inserting effective; and

(B)

by striking the period and inserting

(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;

(B)

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

(C)

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

(D)

paragraphs (3), (4), and (5) of such section are redesignated as paragraphs (2), (3), and (4), respectively.

; and

(2)

in paragraph (2)—

(A)

by striking Exception.—With respect to and inserting

Exception.—

(A)

Existing investigations

With respect to

; and

(B)

by adding at the end the following new subparagraph:

(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).

.

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—

(1)

in subsection (b)—

(A)

in paragraph (1), by striking 2006 and inserting 2013; and

(B)

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

(2)

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

(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.

(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.

;

(3)

in subsection (d)—

(A)

in paragraph (1), by striking or (c)(2) and inserting , (c)(2), (c)(3), or (c)(4); and

(B)

in paragraph (2), by striking and (c)(2) and inserting , (c)(2), (c)(3), or (c)(4); and

(4)

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

(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—

(1)

in subsection (b)(1), by striking 2006 and inserting 2013;

(2)

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

(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.

(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.

;

(3)

in subsection (d)—

(A)

in paragraph (1), by striking or (c)(2) and inserting , (c)(2), (c)(3), or (c)(4); and

(B)

in paragraph (2), by striking or (c)(2) and inserting , (c)(2), (c)(3), or (c)(4); and

(4)

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

(c)

Pen registers and trap and trace devices

(1)

Audits

The Inspector General of the Department of Justice shall perform comprehensive audits of the effectiveness and use 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.

(2)

Requirements

The audits required under paragraph (1) shall include—

(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);

(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);

(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);

(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;

(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

(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—

(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;

(ii)

the manner in which the information is collected, retained, analyzed, and disseminated by the Federal Bureau of Investigation, including any direct access to the information provided to any other department, agency, or instrumentality of Federal, State, local, or tribal governments or any private sector entity;

(iii)

with respect to calendar years 2010 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;

(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

(v)

whether, and how often, the Federal Bureau of Investigation provided information acquired under a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978 to law enforcement authorities for use in criminal proceedings.

(3)

Submission dates

(A)

Prior years

Not later than 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.

(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.

(4)

Prior notice to Attorney General and Director of National Intelligence; comments

(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.

(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.

(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.

106.

Criminal sneak and peek searches

Section 3103a of title 18, United States Code, is amended—

(1)

in subsection (b)—

(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 may 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

(B)

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

(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 may 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..

107.

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—

(1)

in paragraph (1), by striking and at the end;

(2)

in paragraph (2)—

(A)

by striking a certification by the applicant and inserting a statement of the facts relied upon by the applicant to justify the belief of the applicant; and

(B)

by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following:

(3)

a statement of proposed minimization procedures.

.

(b)

Minimization

(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:

(4)

The term minimization procedures means—

(A)

specific procedures, that are reasonably designed in light of the purpose and technique of an order for the installation and use of a pen register or trap and trace device, to minimize the retention, and prohibit the dissemination, of nonpublicly available information known to concern unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(B)

procedures that require that nonpublicly available information, which is not foreign intelligence information shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance; and

(C)

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

.

(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—

(A)

in subsection (d)(2)—

(i)

in subparagraph (C)(i)(VII), by striking ; and and inserting ;;

(ii)

in subparagraph (C)(ii)(IV), by striking the period at the end and inserting ; and; and

(iii)

by adding at the end the following new subparagraph:

(D)

shall, if the judge finds that there are exceptional circumstances, direct that minimization procedures be followed.

; and

(B)

by adding at the end the following:

(h)

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

.

(3)

Emergencies

Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended—

(A)

by redesignating subsection (c) as subsection (d); and

(B)

by inserting after subsection (b) the following:

(c)

If the Attorney General authorizes the emergency installation and use of a pen register or trap and trace device under this section, the Attorney General shall require that minimization procedures be followed, if appropriate.

.

(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 under this title, if required after provisions of this section.

108.

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—

(1)

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

(2)

by inserting after subsection (a) the following:

(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

(3)

in subsection (e), as so redesignated, by striking subsection (c) and inserting subsection (d).

109.

Challenges to nationwide orders for electronic evidence

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

(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—

(1)

the United States district court for the district in which the order was issued; or

(2)

the United States district court for the district in which the order was served.

.

110.

Report on civil liberties and privacy protections

Not later than 180 days after the date of the enactment of this Act, the President 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 describing—

(1)

whether operations conducted pursuant to orders issued under section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) could be modified in a manner that enhances protections for civil liberties; and

(2)

the nature of any potential modifications, the likely costs of such modifications, any technical challenges, and any potential impact on such operations.

II

NATIONAL SECURITY LETTER REFORM

201.

Short title

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

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:

(1)

Section 2709 of title 18, United States Code.

(2)

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

(3)

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

(4)

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

(5)

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

(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.

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:

(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).

(5)

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

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—

(1)

pertains to a foreign power or an agent of a foreign power;

(2)

is relevant to the activities of a suspected agent of a foreign power that is the subject of such authorized investigation; or

(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.

(b)

Maintenance

The agency under whose authority a national security letter is issued shall maintain a copy of a separate writing required under subsection (a).

(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).

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.

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 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.

207.

Judicial review of national security letter nondisclosure order

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

(b)

Nondisclosure

(1)

In general

(A)

Notice

If a recipient of a request or order for a report, records, or other information under section 2709 of this title, section 626 or 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u and 1681v), section 1114 of the Right to Financial Privacy Act (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.

(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.

(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.

(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.

(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—

(A)

a danger to the national security of the United States;

(B)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(C)

interference with diplomatic relations; or

(D)

danger to the life or physical safety of any person.

(3)

Standard

A district court of the United States 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).

(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.

(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.

.

208.

Minimization

(a)

In general

Not later than 180 days after the date of enactment of this Act, the Attorney General shall—

(1)

establish minimization procedures 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; and

(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 a copy of the minimization procedures established under paragraph (1).

(b)

Definitions

In this section—

(1)

the term minimization procedures means—

(A)

specific procedures that are reasonably designed in light of the purpose and technique of a 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;

(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(e)(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

(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

(2)

the term national security letter means a request for information issued under section 2709 of title 18, United States Code, section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(5)), 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).

209.

Public reporting on National Security Letters

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

(1)

in paragraph (1)—

(A)

in the matter preceding subparagraph (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

(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—

(i)

United States persons;

(ii)

persons who are not United States persons;

(iii)

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

(iv)

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

(B)

Exception

With respect to the number of requests for subscriber information under section 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).

.

III

GENERAL PROVISIONS

301.

Sense of Congress on level of classification of certain programs

It is the sense of Congress that the President should periodically review the level of classification of programs that make use of national security letters (as defined in section 203 of this Act) or the authorities under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) to determine if such programs can be declassified, in whole or in part, without interfering with an ongoing investigation or otherwise threatening national security.

January 29, 2010

The Permanent Select Committee on Intelligence and the Committee on Financial Services discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed