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Text of the Fourth Amendment Restoration Act

This bill was introduced on May 25, 2011, in a previous session of Congress, but was not enacted. The text of the bill below is as of May 25, 2011 (Introduced).

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Source: GPO

II

112th CONGRESS

1st Session

S. 1070

IN THE SENATE OF THE UNITED STATES

May 25, 2011

introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To modify the Foreign Intelligence Surveillance Act of 1978 and to require judicial review of National Security Letters and Suspicious Activity Reports to prevent unreasonable searches and for other purposes.

1.

Short title

This Act may be cited as the Fourth Amendment Restoration Act.

2.

Findings

Congress finds the following:

(1)

The Fourth Amendment of the United States Constitution states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”.

(2)

Prior to the American Revolution, American colonists objected to the issuance of writs of assistance, which were general warrants that did not specify either the place or goods to be searched.

(3)

Writs of assistance played an important role in the events that led to the American Revolution.

(4)

The Fourth Amendment of the United States Constitution was intended to protect against the issuance of general warrants, and to guarantee that only judges, not soldiers or police officers, are able to issue warrants.

(5)

Various provisions of the USA PATRIOT Act (Public Law 107–56; 115 Stat. 272) expressly violate the original intent of the Fourth Amendment of the United States Constitution.

3.

Limitations on roving wiretaps

Section 105(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)) is amended—

(1)

in paragraph (1), by striking subparagraphs (A) and (B) and inserting the following:

(A)
(i)

the identity of the target of the electronic surveillance, if known; or

(ii)

if the identity of the target is not known, a description of the specific target and the nature and location of the facilities and places at which the electronic surveillance will be directed;

(B)
(i)

the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known; or

(ii)

if any of the facilities or places are not known, the identity of the target;

; and

(2)

in paragraph (2)—

(A)

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

(B)

by inserting after subparagraph (A) the following:

(B)

in cases where the facility or place at which the electronic surveillance will be directed is not known at the time the order is issued, that the electronic surveillance be conducted only for such time as it is reasonable to presume that the target of the surveillance is or was reasonably proximate to the particular facility or place;

.

4.

Sunsets on roving wiretap authority and access to business records

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 to read as follows:

(1)

In general

(A)

Section 206

Effective December 31, 2013, the Foreign Intelligence Surveillance Act of 1978 is amended so that section 105(c)(2) (50 U.S.C. 1805(c)(2)) read as such section read on October 25, 2001.

(B)

Section 215

Effective February 28, 2011, the Foreign Intelligence Surveillance Act of 1978 is amended so that sections 501 and 502 (50 U.S.C. 1861 and 1862) read as such sections read on October 25, 2001.

.

5.

Minimization procedures

(a)

In general

Not later than 180 days after the date of enactment of this Act, the Attorney General shall establish minimization and destruction procedures governing the acquisition, retention, and dissemination by the Federal Bureau of Investigation of any records received by the Federal Bureau of Investigation—

(1)

in response to a National Security Letter issued under section 2709 of title 18, United States Code, 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(a) of the National Security Act of 1947 (50 U.S.C. 436(a)); or

(2)

pursuant to title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.).

(b)

Minimization and destruction procedures defined

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

(1)

specific procedures that are reasonably designed in light of the purpose and technique of a National Security Letter or a request for tangible things for an investigation to obtain foreign intelligence information, as appropriate, 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, including procedures to ensure that information obtained that is outside the scope of such National Security Letter or request, is returned or destroyed;

(2)

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

(3)

notwithstanding paragraphs (1) and (2), 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.

6.

Judicial review of National Security Letters

Section 3511 of title 18, United States Code, is amended by adding at the end the following:

(f)

National Security Letters

An officer or employee of the United States may not issue a National Security Letter under section 270 of title 18, United States Code, 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(a) of the National Security Act of 1947 (50 U.S.C. 436(a)) unless—

(1)

the National Security Letter is submitted to a judge of the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803); and

(2)

such judge issues an order finding that a warrant could be issued under rule 41 of the Federal Rules of Criminal Procedure to search for and seize the information sought to be obtained in the National Security Letter.

.

7.

Judicial review of suspicious activity reports

Section 5318(g) of title 31, United States Code, is amended—

(1)

in paragraph (1), by inserting before the period at the end , subject to judicial review under paragraph (5); and

(2)

by adding at the end the following:

(5)

Judicial review

The Secretary may not, under this section or the rules issued under this section, or under any other provision of law, require any financial institution, director, officer, employee, or agent of any financial institution, or any other entity that is otherwise subject to regulation or oversight by the Secretary or pursuant to the securities laws (as that term is defined under section 3 of the Securities Exchange Act of 1934) to report any transaction under this section or its equivalent under such provision of law, unless the appropriate district court of the United States issues an order finding that a warrant could be issued under rule 41 of the Federal Rules of Criminal Procedure for the information sought to be obtained by the Secretary.

.