< Back to S. 1692 (111th Congress, 2009–2010)

Text of the USA PATRIOT Act Sunset Extension Act of 2009

This bill was introduced on October 8, 2009, in a previous session of Congress, but was not enacted. The text of the bill below is as of Oct 13, 2009 (Reported by Senate Committee).

Source: GPO

II

Calendar No. 177

111th CONGRESS

1st Session

S. 1692

IN THE SENATE OF THE UNITED STATES

September 22, 2009

(for himself, Mr. Cardin, Mr. Kaufman, Mr. Sanders, Mrs. Feinstein, Mr. Whitehouse, and Ms. Klobuchar) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

October 13, 2009

Reported by , with an amendment

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

A BILL

To extend the sunset of certain provisions of the USA PATRIOT Act and the authority to issue national security letters, and for other purposes.

1.

Short title

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

2.

Sunsets

(a)

Sections 206 and 215 sunset

(1)

In general

Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1805 note, 50 U.S.C. 1861 note, and 50 U.S.C. 1862 note) is amended by striking 2009 and inserting 2013.

(2)

Conforming amendments

(A)

In general

Section 601(a)(1)(D) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1)(D)) is amended by striking section 501; and inserting section 502 or under section 501 pursuant to section 102(b)(2) the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1861 note);.

(B)

Application under section 404 of the FISA Amendments Act of 2008

Section 404(b)(4)(A) of the FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat. 2477) is amended by striking the period at the end and inserting “, except that paragraph (1)(D) of such section 601(a) shall be applied as if it read as follows:

‘(D)

access to records under section 502 or under section 501 pursuant to section 102(b)(2) the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1861 note);’.”.

(C)

Effective date

The amendments made by this paragraph shall take effect on December 31, 2013.

(b)

Extension of sunset relating to individual terrorists as agents of foreign powers

(1)

In general

Section 6001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 50 U.S.C. 1801 note) is amended to read as follows:

(b)

Sunset

(1)

Repeal

Subparagraph (C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)), as added by subsection (a), is repealed effective December 31, 2013.

(2)

Transition provision

Notwithstanding paragraph (1), subparagraph (C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) shall continue to apply 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.

.

(2)

Conforming amendment

(A)

In general

Section 601(a)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(2)) is amended by striking the semicolon at the end and inserting pursuant to subsection (b)(2) of section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 50 U.S.C. 1801 note);.

(B)

Effective date

The amendment made by subparagraph (A) shall take effect on December 31, 2013.

(c)

National security letters

(1)

In general

Effective on December 31, 2013, the following provisions of law are repealed:

(A)

Section 2709 of title 18, United States Code.

(B)

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

(C)

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

(D)

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

(E)

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

(2)

Transition provision

Notwithstanding paragraph (1), the provisions of law referred to in paragraph (1) 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.

(3)

Technical and conforming amendments

(A)

Title 18

Title 18, United States Code, is amended—

(i)

in the table of sections for chapter 121, by striking the item relating to section 2709;

(ii)

by striking section 3511; and

(iii)

in the table of sections for chapter 223, by striking the item relating to section 3511.

(B)

Fair Credit Reporting Act

The Fair Credit Reporting Act (15 U.S.C. 1681) is amended—

(i)

in section 626 (15 U.S.C. 1681u)—

(I)

in subsection (d)(1), by striking the identity of financial institutions or a consumer report respecting any consumer under subsection (a), (b), or (c) and inserting a consumer report respecting any consumer under subsection (c);

(II)

in subsection (h)(1), by striking subsections (a), (b), and (c) and inserting subsection (c); and

(ii)

in the table of sections, by striking the item relating to section 627.

(C)

National Security Act of 1947

The National Security Act of 1947 (50 U.S.C. 401 et seq.) is amended—

(i)

in section 507(b) (50 U.S.C. 415b(b))—

(I)

by striking paragraph (5); and

(II)

by redesignating paragraph (6) as paragraph (5); and

(ii)

in the table of contents, by striking the item relating to section 802.

(D)

Effective date

The amendments made by this paragraph shall take effect on December 31, 2013.

3.

Factual basis for and issuance of orders for access to tangible things

(a)

In general

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

(1)

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

(2)

in subsection (b)(2), by striking subparagraphs (A) and (B) and inserting the following:

(A)

a statement of facts showing that there are reasonable grounds to believe that the records or other things sought—

(i)

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

(ii)
(I)

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

(II)

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

(III)

pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

(B)

a statement of proposed minimization procedures.

; and

(3)

in subsection (c)—

(A)

in paragraph (1)—

(i)

by inserting and that the proposed minimization procedures meet the definition of minimization procedures under subsection (g) after subsections (a) and (b); and

(ii)

by striking the second sentence; and

(B)

in paragraph (2)—

(i)

in subparagraph (D), by striking and at the end;

(ii)

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

(iii)

by adding at the end the following:

(F)

shall direct that the minimization procedures be followed.

.

(b)

Technical and conforming amendments

(1)

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.

(2)

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 purposes and international terrorism investigations.

.

4.

Factual basis for and issuance of orders for pen registers and trap and trace devices for foreign intelligence purposes

(a)

In general

(1)

Application

Section 402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended—

(A)

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

(B)

by striking paragraph (2) and inserting the following:

(2)

a statement of facts showing that there are reasonable grounds to believe that the information likely to be obtained—

(A)

is relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(1) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

(B)
(i)

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

(ii)

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

(iii)

pertains to an individual in contact with, or known to, a suspected agent of a foreign power; and

(3)

a statement of proposed minimization procedures.

.

(2)

Minimization

(A)

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 acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(B)

procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1), 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.

.

(B)

Pen registers and trap and trace devices

Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended—

(i)

in subsection (d)—

(I)

in paragraph (1), by inserting , and that the proposed minimization procedures meet the definition of minimization procedures under this title before the period at the end; and

(II)

in paragraph (2)(B)—

(aa)

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

(bb)

by adding at the end the following:

(iv)

the minimization procedures be followed; and

; and

(ii)

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 the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.

.

(C)

Emergencies

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

(i)

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

(ii)

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 the minimization procedures required by this title for the issuance of a judicial order be followed.

.

(D)

Use of information

Section 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)) is amended by striking provisions of and inserting minimization procedures required under.

5.

Limitations on disclosure of national security letters

(a)

In general

Section 2709 of title 18, United States Code, is amended by striking subsection (c) and inserting the following:

(c)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (4) is provided, no wire or electronic communication service provider, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person the particular information specified in the certification during the time period to which the certification applies, which may be not longer than 1 year.

(B)

Certification

The requirements of subparagraph (A) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person.

(2)

Exception

(A)

In general

A wire or electronic communication service provider, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with the request;

(ii)

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

(iii)

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

(B)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued.

(C)

Notice

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

(3)

Extension

The 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 in a Bureau field office, may extend a nondisclosure requirement for additional periods of not longer than 1 year if, at the time of each extension, a new certification is made under paragraph (1)(B) and notice is provided to the recipient of the applicable request that the nondisclosure requirement has been extended and the recipient has the right to judicial review of the nondisclosure requirement.

(4)

Right to judicial review

(A)

In general

A wire or electronic communications service provider that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement and any extension thereof.

(B)

Timing

(i)

In general

A request under subsection (a) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the request.

(ii)

Extension

A notice that the applicable nondisclosure requirement has been extended under paragraph (3) shall state that if the recipient wishes to have a court review the nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the notice.

(C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of this title.

(5)

Termination

If the facts supporting a nondisclosure requirement cease to exist prior to the applicable time period of the nondisclosure requirement, an appropriate official of the Federal Bureau of Investigation shall promptly notify the wire or electronic service provider, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

(b)

Identity of financial institutions and credit reports

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

(d)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (4) is provided, no consumer reporting agency, or officer, employee, or agent thereof, that receives a request or order under subsection (a), (b), or (c), shall disclose to any person the particular information specified in the certification during the time period to which the certification applies, which may be not longer than 1 year.

(B)

Certification

The requirements of subparagraph (A) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person.

(2)

Exception

(A)

In general

A consumer reporting agency, or officer, employee, or agent thereof, that receives a request or order under subsection (a), (b), or (c) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with the request or order;

(ii)

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

(iii)

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

(B)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request or order is issued under subsection (a), (b), or (c) in the same manner as the person to whom the request or order is issued.

(C)

Notice

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

(3)

Extension

The 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 in a Bureau field office, may extend a nondisclosure requirement for additional periods of not longer than 1 year if, at the time of each extension, a new certification is made under paragraph (1)(B) and notice is provided to the recipient of the applicable request or order that the nondisclosure requirement has been extended and the recipient has the right to judicial review of the nondisclosure requirement.

(4)

Right to judicial review

(A)

In general

A consumer reporting agency that receives a request or order under subsection (a), (b), or (c) shall have the right to judicial review of any applicable nondisclosure requirement and any extension thereof.

(B)

Timing

(i)

In general

A request or order under subsection (a), (b), or (c) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the request or order.

(ii)

Extension

A notice that the applicable nondisclosure requirement has been extended under paragraph (3) shall state that if the recipient wishes to have a court review the nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the notice.

(C)

Initiation of proceedings

If a recipient of a request or order under subsection (a), (b), or (c) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code.

(5)

Termination

If the facts supporting a nondisclosure requirement cease to exist prior to the applicable time period of the nondisclosure requirement, an appropriate official of the Federal Bureau of Investigation shall promptly notify the consumer reporting agency, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

(c)

Disclosures to Governmental agencies for counterterrorism purposes

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

(c)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (4) is provided, no consumer reporting agency, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person the particular information specified in the certification during the time period to which the certification applies, which may be not longer than 1 year.

(B)

Certification

The requirements of subparagraph (A) shall apply if the head of a government agency authorized to conduct investigations of intelligence or counterintelligence activities or analysis related to international terrorism, or a designee, certifies that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person.

(2)

Exception

(A)

In general

A consumer reporting agency, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with the request;

(ii)

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

(iii)

other persons as permitted by the head of the government agency authorized to conduct investigations of intelligence or counterintelligence activities or analysis related to international terrorism, or a designee.

(B)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued.

(C)

Notice

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

(3)

Extension

The head of a government agency authorized to conduct investigations of intelligence or counterintelligence activities or analysis related to international terrorism, or a designee, may extend a nondisclosure requirement for additional periods of not longer than 1 year if, at the time of each extension, a new certification is made under paragraph (1)(B) and notice is provided to the recipient of the applicable request that the nondisclosure requirement has been extended and the recipient has the right to judicial review of the nondisclosure requirement.

(4)

Right to judicial review

(A)

In general

A consumer reporting agency that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement and any extension thereof.

(B)

Timing

(i)

In general

A request under subsection (a) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the request.

(ii)

Extension

A notice that the applicable nondisclosure requirement has been extended under paragraph (3) shall state that if the recipient wishes to have a court review the nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the notice.

(C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code.

(5)

Termination

If the facts supporting a nondisclosure requirement cease to exist prior to the applicable time period of the nondisclosure requirement, an appropriate official of the government agency authorized to conduct investigations of intelligence or counterintelligence activities or analysis related to international terrorism shall promptly notify the consumer reporting agency, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

(d)

Financial records

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

(D)

Prohibition of certain disclosure

(i)

Prohibition

(I)

In general

If a certification is issued under subclause (II) and notice of the right to judicial review under clause (iv) is provided, no financial institution, or officer, employee, or agent thereof, that receives a request under subparagraph (A), shall disclose to any person the particular information specified in the certification during the time period to which the certification applies, which may be not longer than 1 year.

(II)

Certification

The requirements of subclause (I) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that, absent a prohibition of disclosure under this subparagraph, there may result—

(aa)

a danger to the national security of the United States;

(bb)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(cc)

interference with diplomatic relations; or

(dd)

danger to the life or physical safety of any person.

(ii)

Exception

(I)

In general

A financial institution, or officer, employee, or agent thereof, that receives a request under subparagraph (A) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(aa)

those persons to whom disclosure is necessary in order to comply with the request;

(bb)

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

(cc)

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

(II)

Nondisclosure requirement

A person to whom disclosure is made under subclause (I) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subparagraph (A) in the same manner as the person to whom the request is issued.

(III)

Notice

Any recipient that discloses to a person described in subclause (I) information otherwise subject to a nondisclosure requirement shall inform the person of the applicable nondisclosure requirement.

(iii)

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 in a Bureau field office, may extend a nondisclosure requirement for additional periods of not longer than 1 year if, at the time of each extension, a new certification is made under clause (i)(II) and notice is provided to the recipient of the applicable request that the nondisclosure requirement has been extended and the recipient has the right to judicial review of the nondisclosure requirement.

(iv)

Right to judicial review

(I)

In general

A financial institution that receives a request under subparagraph (A) shall have the right to judicial review of any applicable nondisclosure requirement and any extension thereof.

(II)

Timing

(aa)

In general

A request under subparagraph (A) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the request.

(bb)

Extension

A notice that the applicable nondisclosure requirement has been extended under clause (iii) shall state that if the recipient wishes to have a court review the nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the notice.

(III)

Initiation of proceedings

If a recipient of a request under subparagraph (A) makes a notification under subclause (II), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code.

(v)

Termination

If the facts supporting a nondisclosure requirement cease to exist prior to the applicable time period of the nondisclosure requirement, an appropriate official of the Federal Bureau of Investigation shall promptly notify the financial institution, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

(e)

Requests by authorized investigative agencies

Section 802 of the National Security Act of 1947 (50 U.S.C. 436), is amended by striking subsection (b) and inserting the following:

(b)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (4) is provided, no governmental or private entity, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person the particular information specified in the certification during the time period to which the certification applies, which may be not longer than 1 year.

(B)

Certification

The requirements of subparagraph (A) shall apply if the head of an authorized investigative agency described in subsection (a), or a designee, certifies that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person.

(2)

Exception

(A)

In general

A governmental or private entity, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with the request;

(ii)

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

(iii)

other persons as permitted by the head of the authorized investigative agency described in subsection (a).

(B)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued.

(C)

Notice

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

(3)

Extension

The head of an authorized investigative agency described in subsection (a), or a designee, may extend a nondisclosure requirement for additional periods of not longer than 1 year if, at the time of each extension, a new certification is made under paragraph (1)(B) and notice is provided to the recipient of the applicable request that the nondisclosure requirement has been extended and the recipient has the right to judicial review of the nondisclosure requirement.

(4)

Right to judicial review

(A)

In general

A governmental or private entity that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement and any extension thereof.

(B)

Timing

(i)

In general

A request under subsection (a) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the request.

(ii)

Extension

A notice that the applicable nondisclosure requirement has been extended under paragraph (3) shall state that if the recipient wishes to have a court review the nondisclosure requirement, the recipient shall notify the Government not later than 21 days after the date of receipt of the notice.

(C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code.

(5)

Termination

If the facts supporting a nondisclosure requirement cease to exist prior to the applicable time period of the nondisclosure requirement, an appropriate official of the authorized investigative agency described in subsection (a) shall promptly notify the governmental or private entity, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

6.

Judicial review of FISA orders and national security letters

(a)

FISA

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

(1)

in subparagraph (A)—

(A)

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;

(B)

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

(2)

in subparagraph (C)—

(A)

by striking clause (ii); and

(B)

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

(b)

Judicial review of national security letters

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 not later than 21 days after the date of receipt of the request or of notice that an applicable nondisclosure requirement has been extended.

(B)

Application

Not later than 21 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 1 year, unless the facts justify a longer period of nondisclosure.

(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)

a statement of the facts indicating that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person; and

(B)

the time period during which the Government believes the nondisclosure requirement should apply.

(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 result in—

(A)

a danger to the national security of the United States;

(B)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(C)

interference with diplomatic relations; or

(D)

danger to the life or physical safety of any person.

(4)

Renewal

A nondisclosure order under this subsection may be renewed for additional periods of not longer than 1 year, unless the facts of the case justify a longer period of nondisclosure, upon submission of an application meeting the requirements of paragraph (2), and a determination by the court that the circumstances described in paragraph (3) continue to exist.

.

(c)

Minimization

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

(1)

in paragraph (1), by striking Not later than and all that follows and inserting At or before the end of the period of time for the production of tangible things under an order approved under this section or at any time after the production of tangible things under an order approved under this section, a judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.; and

(2)

in paragraph (2)(A), by inserting acquisition and after to minimize the.

7.

Certification for access to telephone toll and transactional records

(a)

In general

Section 2709(b)(1) of title 18, United States Code, is amended—

(1)

by striking certifies in writing and inserting provides a written certification by the Director (or a designee); and

(2)

by inserting that includes a statement of facts showing that there are reasonable grounds to believe before that the name,.

(b)

Identity of financial institutions and credit reports

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

(1)

in subsection (a), by striking has determined in writing, that such information is sought for and inserting provides to the consumer reporting agency a written determination that includes a statement of facts showing that there are reasonable grounds to believe that such information is relevant to; and

(2)

in subsection (b), by striking has determined in writing that such information is sought for and inserting provides to the consumer reporting agency a written determination that includes a statement of facts showing that there are reasonable grounds to believe that such information is relevant to.

(c)

Disclosures to Governmental agencies for counterterrorism purposes

Section 627(a) of the Fair Credit Reporting Act (15 U.S.C. 1681v(a)) is amended by inserting that includes a statement of facts showing that there are reasonable grounds to believe before that such information is necessary for.

(d)

Financial records

Section 1114(a)(5)(A) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)(A)) is amended—

(1)

by striking certifies in writing and inserting provides a written certification by the Director (or a designee); and

(2)

by striking that such records are sought for foreign counter intelligence purposes and inserting that includes a statement of facts showing that there are reasonable grounds to believe that such records are relevant to a foreign counterintelligence investigation.

(e)

Requests by authorized investigative agencies

Section 802(a)(3) of the National Security Act of 1947 (50 U.S.C. 436(a)(3)), is amended—

(1)

by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and

(2)

by inserting after subparagraph (A) the following:

(B)

shall include a statement of facts showing that there are reasonable grounds to believe, based on credible information, that the person is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent of a foreign power;

.

8.

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).

.

9.

Public reporting on the Foreign Intelligence Surveillance Act

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 paragraphs (1) and (2) of subsection (a).

; and

(3)

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

10.

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 2012; and

(B)

in paragraph (5)(C), by striking calendar year 2006 and inserting each of calendar years 2006 through 2012;

(2)

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

(3)

Calendar years 2007 and 2008

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 and 2008.

(4)

Calendar years 2009 through 2012

Not later than December 31, 2011, and every year thereafter through 2013, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for 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 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 2012;

(2)

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

(3)

Calendar years 2007 and 2008

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 and 2008.

(4)

Calendar years 2009 through 2012

Not later than December 31, 2011, and every year thereafter through 2013, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for 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, including any improper or illegal use, of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841 et seq.) during the period beginning on January 1, 2007 and ending on December 31, 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 2012

Not later than December 31, 2011, and every year thereafter through 2013, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under this section for 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.

1.

Short title

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

2.

Sunsets

(a)

Sections 206 and 215 sunset

(1)

In general

Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1805 note, 50 U.S.C. 1861 note, and 50 U.S.C. 1862 note) is amended by striking 2009 and inserting 2013.

(2)

Conforming amendments

(A)

In general

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by section 3 of this Act, is amended—

(i)

in the table of contents in the first section, by striking the items relating to title V and sections 501, 502, and 503 and inserting the following:

TITLE V—Access to certain business records for foreign intelligence purposes

Sec. 501. Definitions.

Sec. 502. Access to certain business records for foreign intelligence and international terrorism investigations.

;

(ii)

in title V (50 U.S.C. 1861 et seq.)—

(I)

in the title heading, by striking and other tangible things; and

(II)

by striking section 503; and

(iii)

in section 601(a)(1)(D) (50 U.S.C. 1871(a)(1)(D)), by striking section 501; and inserting section 502 or under section 501 pursuant to section 102(b)(2) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1861 note);.

(B)

Application under section 404 of the FISA Amendments Act of 2008

Section 404(b)(4)(A) of the FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat. 2477) is amended by striking the period at the end and inserting “, except that paragraph (1)(D) of such section 601(a) shall be applied as if it read as follows:

‘(D)

access to records under section 502 or under section 501 pursuant to section 102(b)(2) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109–177; 50 U.S.C. 1861 note);’.

.

(C)

Effective date

The amendments made by this paragraph shall take effect on December 31, 2013.

(b)

Extension of sunset relating to individual terrorists as agents of foreign powers

(1)

In general

Section 6001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 50 U.S.C. 1801 note) is amended to read as follows:

(b)

Sunset

(1)

Repeal

Subparagraph (C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)), as added by subsection (a), is repealed effective December 31, 2013.

(2)

Transition provision

Notwithstanding paragraph (1), subparagraph (C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) shall continue to apply on and after December 31, 2013, with respect to any particular foreign intelligence investigation or with respect to any particular offense or potential offense that began or occurred before December 31, 2013.

.

(2)

Conforming amendment

(A)

In general

Section 601(a)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(2)) is amended by striking the semicolon at the end and inserting pursuant to subsection (b)(2) of section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 50 U.S.C. 1801 note);.

(B)

Effective date

The amendment made by subparagraph (A) shall take effect on December 31, 2013.

(c)

National security letters

(1)

Repeal

Effective on December 31, 2013—

(A)

section 2709 of title 18, United States Code, is amended to read as such provision read on October 25, 2001;

(B)

section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)) is amended to read as such provision read on October 25, 2001;

(C)

subsections (a) and (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) are amended to read as subsections (a) and (b), respectively, of section 624 of such Act read on October 25, 2001;

(D)

section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) is repealed; and

(E)

section 802 of the National Security Act of 1947 (50 U.S.C. 436) is amended to read as such provision read on October 25, 2001.

(2)

Transition provision

Notwithstanding paragraph (1), the provisions of law referred to in paragraph (1), as in effect on December 30, 2013, shall continue to apply on and after December 31, 2013, with respect to any particular foreign intelligence investigation or with respect to any particular offense or potential offense that began or occurred before December 31, 2013.

(3)

Technical and conforming amendments

Effective December 31, 2013—

(A)

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

(i)

in subsections (a), (c), and (d), by striking or 627(a) each place it appears; and

(ii)

in subsection (b)(1)(A), as amended by section 6(b) of this Act, by striking section 626 or 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u and 1681v) and inserting section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u);

(B)

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

(i)

in subparagraph (C), by adding and at the end;

(ii)

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

(iii)

by striking subparagraph (E); and

(C)

the table of sections for the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) is amended by striking the item relating to section 627.

3.

Orders for access to certain business records and tangible things

(a)

In general

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

(1)

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

(2)

in subsection (b)(2)—

(A)

in subparagraph (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;; and

(B)

by striking subparagraph (B) and inserting the following:

(B)

if the records sought are the circulation records or patron lists of a library (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1))), a statement of facts showing that there are reasonable grounds to believe that the records sought—

(i)

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

(ii)
(I)

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

(II)

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

(III)

pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

(C)

a statement of proposed minimization procedures.

; and

(3)

in subsection (c)—

(A)

in paragraph (1)—

(i)

by inserting and that the proposed minimization procedures meet the definition of minimization procedures under subsection (g) after subsections (a) and (b); and

(ii)

by striking the second sentence; and

(B)

in paragraph (2)—

(i)

in subparagraph (D), by striking and at the end;

(ii)

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

(iii)

by adding at the end the following:

(F)

shall direct that the minimization procedures be followed.

.

(b)

Technical and conforming amendments

(1)

Definitions

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 terms Attorney General, foreign intelligence information, international terrorism, person, United States, and United States person have the meanings given such terms in section 101.

.

(2)

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 inserting and other tangible things after certain business records.

(3)

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—

(A)

by striking the items relating to title V and section 501 and inserting the following:

TITLE V—Access to certain business records and other tangible things for foreign intelligence purposes

Sec. 501. Access to certain business records and other tangible things for foreign intelligence purposes and international terrorism investigations.

; and

(B)

by inserting after the item relating to section 502 the following:

Sec. 503. Definitions.

.

4.

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 and circumstances 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 whether minimization procedures are being proposed and, if so, a statement of the 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)—

(i)

in paragraph (1), by inserting , and if, in exceptional circumstances, minimization procedures are ordered, that the proposed minimization procedures meet the definition of minimization procedures under this title before the period at the end; and

(ii)

in paragraph (2)(B)—

(I)

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

(II)

by adding at the end the following:

(iv)

if applicable, the minimization procedures be followed; and

; 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 striking provisions of this section and inserting minimization procedures required under this title.

5.

Limitations on disclosure of national security letters

(a)

In general

Section 2709 of title 18, United States Code, is amended by striking subsection (c) and inserting the following:

(c)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (3) is provided, no wire or electronic communication service provider, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person that the Director of the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

(B)

Certification

The requirements of subparagraph (A) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person.

(2)

Exception

(A)

In general

A wire or electronic communication service provider, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with the request;

(ii)

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

(iii)

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

(B)

Persons necessary for compliance

Upon a request by the Director of the Federal Bureau of Investigation or the designee of the Director, those persons to whom disclosure will be made under subparagraph (A)(i) or to whom such disclosure was made before the request shall be identified to the Director or the designee.

(C)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued.

(D)

Notice

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

(3)

Right to judicial review

(A)

In general

A wire or electronic communications service provider that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement.

(B)

Notification

A request under subsection (a) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government.

(C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of this title, unless an appropriate official of the Federal Bureau of the Investigation makes a notification under paragraph (4).

(4)

Termination

In the case of any request for which a recipient has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the wire or electronic service provider, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

(b)

Identity of financial institutions and credit reports

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

(d)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (3) is provided, no consumer reporting agency, or officer, employee, or agent thereof, that receives a request or order under subsection (a), (b), or (c), shall disclose or specify in any consumer report, that the Federal Bureau of Investigation has sought or obtained access to information or records under subsection (a), (b), or (c).

(B)

Certification

The requirements of subparagraph (A) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person.

(2)

Exception

(A)

In general

A consumer reporting agency, or officer, employee, or agent thereof, that receives a request or order under subsection (a), (b), or (c) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with the request or order;

(ii)

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

(iii)

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

(B)

Persons necessary for compliance

Upon a request by the Director of the Federal Bureau of Investigation or the designee of the Director, those persons to whom disclosure will be made under subparagraph (A)(i) or to whom such disclosure was made before the request shall be identified to the Director or the designee.

(C)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request or order is issued under subsection (a), (b), or (c) in the same manner as the person to whom the request or order is issued.

(D)

Notice

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

(3)

Right to judicial review

(A)

In general

A consumer reporting agency that receives a request or order under subsection (a), (b), or (c) shall have the right to judicial review of any applicable nondisclosure requirement.

(B)

Notification

A request or order under subsection (a), (b), or (c) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government.

(C)

Initiation of proceedings

If a recipient of a request or order under subsection (a), (b), or (c) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code, unless an appropriate official of the Federal Bureau of Investigation makes a notification under paragraph (4).

(4)

Termination

In the case of any request or order for which a consumer reporting agency has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the consumer reporting agency, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

(c)

Disclosures to Governmental agencies for counterterrorism purposes

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

(c)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (3) is provided, no consumer reporting agency, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person or specify in any consumer report, that a government agency has sought or obtained access to information under subsection (a).

(B)

Certification

The requirements of subparagraph (A) shall apply if the head of a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism, or a designee, certifies that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person.

(2)

Exception

(A)

In general

A consumer reporting agency, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with the request;

(ii)

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

(iii)

other persons as permitted by the head of the government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism, or a designee.

(B)

Persons necessary for compliance

Upon a request by the head of a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism, or a designee, those persons to whom disclosure will be made under subparagraph (A)(i) or to whom such disclosure was made before the request shall be identified to the head of the government agency or the designee.

(C)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued.

(D)

Notice

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

(3)

Right to judicial review

(A)

In general

A consumer reporting agency that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement.

(B)

Notification

A request under subsection (a) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the government.

(C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code, unless an appropriate official of the government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism makes a notification under paragraph (4).

(4)

Termination

In the case of any request for which a consumer reporting agency has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism shall promptly notify the consumer reporting agency, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

(d)

Financial records

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

(D)

Prohibition of certain disclosure

(i)

Prohibition

(I)

In general

If a certification is issued under subclause (II) and notice of the right to judicial review under clause (iii) is provided, no financial institution, or officer, employee, or agent thereof, that receives a request under subparagraph (A), shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under subparagraph (A).

(II)

Certification

The requirements of subclause (I) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that, absent a prohibition of disclosure under this subparagraph, there may result—

(aa)

a danger to the national security of the United States;

(bb)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(cc)

interference with diplomatic relations; or

(dd)

danger to the life or physical safety of any person.

(ii)

Exception

(I)

In general

A financial institution, or officer, employee, or agent thereof, that receives a request under subparagraph (A) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(aa)

those persons to whom disclosure is necessary in order to comply with the request;

(bb)

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

(cc)

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

(II)

Persons necessary for compliance

Upon a request by the Director of the Federal Bureau of Investigation or the designee of the Director, those persons to whom disclosure will be made under subclause (I)(aa) or to whom such disclosure was made before the request shall be identified to the Director or the designee.

(III)

Nondisclosure requirement

A person to whom disclosure is made under subclause (I) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subparagraph (A) in the same manner as the person to whom the request is issued.

(IV)

Notice

Any recipient that discloses to a person described in subclause (I) information otherwise subject to a nondisclosure requirement shall inform the person of the applicable nondisclosure requirement.

(iii)

Right to judicial review

(I)

In general

A financial institution that receives a request under subparagraph (A) shall have the right to judicial review of any applicable nondisclosure requirement.

(II)

Notification

A request under subparagraph (A) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government.

(III)

Initiation of proceedings

If a recipient of a request under subparagraph (A) makes a notification under subclause (II), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code, unless an appropriate official of the Federal Bureau of Investigation makes a notification under clause (iv).

(iv)

Termination

In the case of any request for which a financial institution has submitted a notification under clause (iii)(II), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the financial institution, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

(e)

Requests by authorized investigative agencies

Section 802 of the National Security Act of 1947 (50 U.S.C. 436), is amended by striking subsection (b) and inserting the following:

(b)

Prohibition of certain disclosure

(1)

Prohibition

(A)

In general

If a certification is issued under subparagraph (B) and notice of the right to judicial review under paragraph (3) is provided, no governmental or private entity, or officer, employee, or agent thereof, that receives a request under subsection (a), shall disclose to any person that an authorized investigative agency described in subsection (a) has sought or obtained access to information under subsection (a).

(B)

Certification

The requirements of subparagraph (A) shall apply if the head of an authorized investigative agency described in subsection (a), or a designee, certifies that, absent a prohibition of disclosure under this subsection, there may result—

(i)

a danger to the national security of the United States;

(ii)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(iii)

interference with diplomatic relations; or

(iv)

danger to the life or physical safety of any person.

(2)

Exception

(A)

In general

A governmental or private entity, or officer, employee, or agent thereof, that receives a request under subsection (a) may disclose information otherwise subject to any applicable nondisclosure requirement to—

(i)

those persons to whom disclosure is necessary in order to comply with the request;

(ii)

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

(iii)

other persons as permitted by the head of the authorized investigative agency described in subsection (a).

(B)

Persons necessary for compliance

Upon a request by the head of an authorized investigative agency described in subsection (a), or a designee, those persons to whom disclosure will be made under subparagraph (A)(i) or to whom such disclosure was made before the request shall be identified to the head of the authorized investigative agency or the designee.

(C)

Nondisclosure requirement

A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (a) in the same manner as the person to whom the request is issued.

(D)

Notice

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

(3)

Right to judicial review

(A)

In general

A governmental or private entity that receives a request under subsection (a) shall have the right to judicial review of any applicable nondisclosure requirement.

(B)

Notification

A request under subsection (a) shall state that if the recipient wishes to have a court review a nondisclosure requirement, the recipient shall notify the Government.

(C)

Initiation of proceedings

If a recipient of a request under subsection (a) makes a notification under subparagraph (B), the Government shall initiate judicial review under the procedures established in section 3511 of title 18, United States Code, unless an appropriate official of the authorized investigative agency described in subsection (a) makes a notification under paragraph (4).

(4)

Termination

In the case of any request for which a governmental or private entity has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the authorized investigative agency described in subsection (a) shall promptly notify the governmental or private entity, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

.

6.

Judicial review of FISA orders and national security letters

(a)

FISA

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

(1)

in subparagraph (A)—

(A)

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; and

(B)

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

(2)

in subparagraph (C)—

(A)

by striking clause (ii); and

(B)

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

(b)

Judicial review of national security letters

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 of 1978 (12 U.S.C. 3414), or section 802 of the National Security Act of 1947 (50 U.S.C. 436), wishes to have a court review a nondisclosure requirement imposed in connection with the request or order, the recipient shall notify the Government.

(B)

Application

Not later than 30 days after the date of receipt of a notification under subparagraph (A), the Government shall apply for an order prohibiting the disclosure of the existence or contents of the relevant request or order. An application under this subparagraph may be filed in the district court of the United States for any district within which the authorized investigation that is the basis for the request or order is being conducted. The applicable nondisclosure requirement shall remain in effect during the pendency of proceedings relating to the requirement.

(C)

Consideration

A district court of the United States that receives an application under subparagraph (B) should rule expeditiously, and shall, subject to paragraph (3), issue a nondisclosure order that includes conditions appropriate to the circumstances.

(2)

Application contents

An application for a nondisclosure order or extension thereof under this subsection shall include a certification from the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of the department, agency, or instrumentality, containing a statement of specific 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 shall issue a nondisclosure requirement order or extension thereof under this subsection if the court determines, giving substantial weight to the certification under paragraph (2) that there is reason to believe that disclosure of the information subject to the nondisclosure requirement during the applicable time period will result in—

(A)

a danger to the national security of the United States;

(B)

interference with a criminal, counterterrorism, or counterintelligence investigation;

(C)

interference with diplomatic relations; or

(D)

danger to the life or physical safety of any person.

.

(c)

Minimization

Section 501(g)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)(1)) is amended by striking Not later than and all that follows and inserting At or before the end of the period of time for the production of tangible things under an order approved under this section or at any time after the production of tangible things under an order approved under this section, a judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated..

7.

Certification for access to telephone toll and transactional records

(a)

In general

Section 2709 of title 18, United States Code, as amended by this Act, is amended—

(1)

by redesignating subsections (c), (d), (e), and (f) as subsections (d), (e), (f), and (g), respectively; and

(2)

by inserting after subsection (b) the following:

(c)

Written statement

The Director of the Federal Bureau of Investigation, or a designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may make a certification under subsection (b) only upon a written statement, which shall be retained by the Federal Bureau of Investigation, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized investigation described in subsection (b).

.

(b)

Identity of financial institutions and credit reports

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

(1)

by redesignating subsections (d) through (m) as subsections (e) through (n), respectively; and

(2)

by inserting after subsection (c) the following:

(d)

Written statement

The Director of the Federal Bureau of Investigation, or a designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may make a certification under subsection (a) or (b) only upon a written statement, which shall be retained by the Federal Bureau of Investigation, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized investigation described in subsection (a) or (b), as the case may be.

.

(c)

Disclosures to Governmental agencies for counterterrorism purposes

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

(1)

in the subsection heading, by striking Form of certification and inserting Certification;

(2)

by striking The certification and inserting the following:

(1)

Form of certification

The certification

; and

(3)

by adding at the end the following:

(2)

Written statement

A supervisory official or officer described in paragraph (1) may make a certification under subsection (a) only upon a written statement, which shall be retained by the government agency, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized investigation described in subsection (a).

.

(d)

Financial records

Section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)), as amended by this Act, is amended—

(1)

by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and

(2)

by inserting after subparagraph (A) the following:

(B)

The Director of the Federal Bureau of Investigation, or a designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may make a certification under subparagraph (A) only upon a written statement, which shall be retained by the Federal Bureau of Investigation, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized investigation described in subparagraph (A).

.

(e)

Requests by authorized investigative agencies

Section 802(a) of the National Security Act of 1947 (50 U.S.C. 436(a)) is amended by adding at the end the following:

(4)

A department or agency head, deputy department or agency head, or senior official described in paragraph (3)(A) may make a certification under paragraph (3)(A) only upon a written statement, which shall be retained by the authorized investigative agency, of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to the authorized inquiry or investigation described in paragraph (3)(A)(ii).

.

(f)

Technical and conforming amendments

(1)

Obstruction of criminal investigations

Section 1510(e) of title 18, United States Code, is amended by striking section 2709(c)(1) of this title, section 626(d)(1) or 627(c)(1) of the Fair Credit Reporting Act (15 U.S.C. 1681u(d)(1) or 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(D)(i) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(3)(A) or 3414(a)(5)(D)(i)), and inserting section 2709(d)(1) of this title, section 626(e)(1) or 627(c)(1) of the Fair Credit Reporting Act (15 U.S.C. 1681u(e)(1) and 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(E)(i) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(3)(A) and 3414(a)(5)(E)(i)),.

(2)

Semiannual reports

Section 507(b) of the National Security Act of 1947 (50 U.S.C. 415b(b)) is amended—

(A)

in paragraph (4), by striking section 624(h)(2) of the Fair Credit Reporting Act (15 U.S.C. 1681u(h)(2)) and inserting section 626(i)(2) of the Fair Credit Reporting Act (15 U.S.C. 1681u(i)(2)); and

(B)

in paragraph (5), by striking section 1114(a)(5)(C) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(C)) and inserting section 1114(a)(5)(D) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(D)).

8.

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).

.

9.

Public reporting on the Foreign Intelligence Surveillance Act

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 paragraphs (1) and (2) of subsection (a).

; and

(3)

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

10.

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 2011; and

(B)

in paragraph (5)(C), by striking calendar year 2006 and inserting each of calendar years 2006 through 2011;

(2)

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

(3)

Calendar years 2007, 2008, and 2009

Not later than June 30, 2011, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2007, 2008, and 2009.

(4)

Calendar years 2010 and 2011

Not later than December 31, 2012, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2010 and 2011.

;

(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 2011;

(2)

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

(3)

Calendar years 2007, 2008, and 2009

Not later than June 30, 2011, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2007, 2008, and 2009.

(4)

Calendar years 2010 and 2011

Not later than December 31, 2012, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2010 and 2011.

;

(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, including any improper or illegal use, of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841 et seq.) during the period beginning on January 1, 2007 and ending on December 31, 2011.

(2)

Requirements

The audits required under paragraph (1) shall include—

(A)

an examination of the use of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 for calendar years 2007 through 2011;

(B)

an examination of the installation and use of a pen register or trap and trace device on emergency bases under section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843);

(C)

any noteworthy facts or circumstances relating to the use of a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978, including any improper or illegal use of the authority provided under that title; and

(D)

an examination of the effectiveness of the authority under title IV of the Foreign Intelligence Surveillance Act of 1978 as an investigative tool, including—

(i)

the importance of the information acquired to the intelligence activities of the Federal Bureau of Investigation 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 and 2011, an examination of the minimization procedures used in relation to pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 and whether the minimization procedures protect the constitutional rights of United States persons (as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801));

(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 June 30, 2011, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under this section for calendar years 2007 through 2009.

(B)

Calendar years 2010 and 2011

Not later than December 21, 2012, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under this section for calendar years 2010 and 2011.

(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.

11.

Delayed notice search warrants

Section 3103a(b)(3) of title 18, United States Code, is amended by striking 30 days and inserting 7 days.

12.

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

October 13, 2009

Reported with an amendment