S. 193 (112th): USA PATRIOT Act Sunset Extension Act of 2011

112th Congress, 2011–2013. Text as of Mar 17, 2011 (Reported by Senate Committee).

Status & Summary | PDF | Source: GPO

II

Calendar No. 18

112th CONGRESS

1st Session

S. 193

IN THE SENATE OF THE UNITED STATES

January 26, 2011

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

March 17, 2011

Reported by , with amendments

Omit the part struck through and insert the part printed in italic

A BILL

To extend the sunset of certain provisions of the USA PATRIOT Act, and for other purposes.

1.

Short title

This Act may be cited as the USA PATRIOT Act Sunset Extension Act of 2011.

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 February, 28, 2011May 27, 2011 and inserting December 31, 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)

Individual terrorists as agents of foreign powers

(1)

Extension of sunset

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 the second of the 2 sections designated as section 624 of such Act (15 U.S.C. 1681u) (relating to disclosure to the Federal Bureau of Investigation for counterintelligence purposes), as added by section 601 of the Intelligence Authorization Act for Fiscal Year 1996 (Public Law 104–93; 109 Stat. 974), 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.

(d)

FISA Amendments Act of 2008

(1)

Extension

Section 403(b)(1) of the FISA Amendments Act of 2008 (Public Law 110–261; 50 U.S.C. 1881 note) is amended by striking December 31, 2012 and inserting December 31, 2013.

(2)

Technical and conforming amendments

Section 403(b)(2) of such Act (Public Law 110–261; 122 Stat. 2474) is amended by striking December 31, 2012 and inserting December 31, 2013.

(3)

Orders in effect

Section 404(b)(1) of such Act (Public Law 110–261; 50 U.S.C. 1801 note) is amended in the heading by striking December 31, 2012 and inserting December 31, 2013.

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—

“(B)

if the records sought contain bookseller records, or are from a library and contain personally identifiable information about a patron of the library, 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)(1)—

(A)

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

(B)

by inserting , and directing that the minimization procedures be followed after release of tangible things; and

(C)

by striking the second sentence.; and

(4)

by adding at the end the following:

(i)

Definitions

In this section—

(1)

the term bookseller records means transactional records reflecting the purchase (including subscription purchase) or rental of books, journals, or magazines, whether in digital form or in print, of an individual or entity engaged in the sale or rental of books, journals, or magazines;

(2)

the term library has the meaning given that term in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1));

(3)

the term patron means a purchaser, renter, borrower, user, or subscriber of goods or services from a library; and

(4)

the term personally identifiable information includes information that identifies a person as having used, requested, or obtained specific reading materials or services from a library.

.

(b)

Transition procedures

Notwithstanding the amendments made by this Act, an order entered under section 501(c)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(c)(1)) that is in effect on the effective date of the amendments made by this section shall remain in effect until the expiration of the order.

(c)

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)(1), by striking the judge finds and all that follows and inserting the following: “the judge finds—

(A)

that the application satisfies the requirements of this section; and

(B)

that, if there are exceptional circumstances justifying the use of minimization procedures in a particular case, the proposed minimization procedures meet the definition of minimization procedures under this title.

; 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.

(c)

Transition procedures

(1)

Orders in effect

Notwithstanding the amendments made by this Act, an order entered under section 402(d)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(d)(1)) that is in effect on the effective date of the amendments made by this section shall remain in effect until the expiration of the order.

(2)

Extensions

A request for an extension of an order referred to in paragraph (1) shall be subject to the requirements of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by this Act.

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 the judicial district in which the recipient of the order is doing business or in the district court of the United States for any judicial 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 striking subsection (e);

(2)

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

(3)

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 striking subsection (h);

(2)

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

(3)

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 striking subparagraph (C);

(2)

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

(3)

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)(D)(i) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(3)(A) and 3414(a)(5)(D)(i)),.

(2)

Semiannual reports

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

(A)

by striking paragraphs (4) and (5); and

(B)

by redesignating paragraph (6) as paragraph (4).

8.

Public reporting on national security letters

(a)

In general

Section 118(c) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (18 U.S.C. 3511 note) is amended to read as follows:

(c)

Reports on requests for national security letters

(1)

Definitions

In this subsection—

(A)

the term applicable period means—

(i)

with respect to the first report submitted under paragraph (2) or (3), the period beginning 180 days after the date of enactment of the USA PATRIOT Act Sunset Extension Act of 2011 and ending on December 31, 2011; and

(ii)

with respect to the second report submitted under paragraph (2) or (3), and each report thereafter, the 6-month period ending on the last day of the second month before the date for submission of the report; and

(B)

the term United States person has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

(2)

Classified form

(A)

In general

Not later than February 1, 2012, and every 6 months thereafter, the Attorney General shall submit to the Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Banking, Housing, and Urban Affairs of the Senate and the Permanent Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Financial Services of the House of Representatives a report fully informing the committees concerning the requests made under section 2709(a) of title 18, United States Code, section 1114(a)(5)(A) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)), section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u), section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v), or section 802 of the National Security Act of 1947 (50 U.S.C. 436) during the applicable period.

(B)

Contents

Each report under subparagraph (A) shall include, for each provision of law described in subparagraph (A)—

(i)

the number of authorized requests under the provision, including requests for subscriber information; and

(ii)

the number of authorized requests under the provision—

(I)

that relate to a United States person;

(II)

that relate to a person that is not a United States person;

(III)

that relate to a person that is—

(aa)

the subject of an authorized national security investigation; or

(bb)

an individual who has been in contact with or otherwise directly linked to the subject of an authorized national security investigation; and

(IV)

that relate to a person that is not known to be the subject of an authorized national security investigation or to have been in contact with or otherwise directly linked to the subject of an authorized national security investigation.

(3)

Unclassified form

(A)

In general

Not later than February 1, 2012, and every 6 months thereafter, the Attorney General shall submit to the Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Banking, Housing, and Urban Affairs of the Senate and the Permanent Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Financial Services of the House of Representatives a report fully informing the committees concerning the aggregate total of all requests identified under paragraph (2) during the applicable period ending on the last day of the second month before the date for submission of the report. Each report under this subparagraph shall be in unclassified form.

(B)

Contents

Each report under subparagraph (A) shall include the aggregate total of requests—

(i)

that relate to a United States person;

(ii)

that relate to a person that is not a United States person;

(iii)

that relate to a person that is—

(I)

the subject of an authorized national security investigation; or

(II)

an individual who has been in contact with or otherwise directly linked to the subject of an authorized national security investigation; and

(iv)

that relate to a person that is not known to be the subject of an authorized national security investigation or to have been in contact with or otherwise directly linked to the subject of an authorized national security investigation.

.

(b)

Technical and conforming amendment

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

9.

Public reporting on the Foreign Intelligence Surveillance Act of 1978

(a)

In general

Title VI of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871) is amended by adding at the end the following:

602.

Annual unclassified report

Not later than June 30, 2012, and every year thereafter, the Attorney General, in consultation with the Director of National Intelligence, and with due regard for the protection of classified information from unauthorized disclosure, 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 an unclassified report summarizing how the authorities under this Act are used, including the impact of the use of the authorities under this Act on the privacy of United States persons (as defined in section 101).

.

(b)

Technical and conforming amendment

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 inserting after the item relating to section 601 the following:

Sec. 602. Annual unclassified report.

.

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;

(B)

by striking paragraphs (2) and (3);

(C)

by redesignating paragraphs (4) and (5) as paragraphs (2) and (3), respectively; and

(D)

in paragraph (3), as so redesignated—

(i)

by striking subparagraph (C) and inserting the following:

(C)

with respect to calendar years 2007 through 2011, an examination of the minimization procedures used in relation to orders under section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) and whether the minimization procedures protect the constitutional rights of United States persons.

; and

(ii)

in subparagraph (D), by striking (as such term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)));

(2)

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

(3)

Calendar years 2007, 2008, and 2009

Not later than September 30, 2011March 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 subsection (a) for calendar years 2007, 2008, and 2009.

(4)

Calendar years 2010 and 2011

Not later than December 31, 2012March 31, 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 subsection (a) for calendar years 2010 and 2011.

;

(3)

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

(4)

by inserting after subsection (c) the following:

(d)

Intelligence assessment

(1)

In general

For the period beginning on January 1, 2007 and ending on December 31, 2011, the Inspector General of each element of the intelligence community outside of the Department of Justice that used information acquired under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) in the intelligence activities of the element of the intelligence community shall—

(A)

assess the importance of the information to the intelligence activities of the element of the intelligence community;

(B)

examine the manner in which that information was collected, retained, analyzed, and disseminated by the element of the intelligence community;

(C)

describe any noteworthy facts or circumstances relating to orders under title V of the Foreign Intelligence Surveillance Act of 1978 as the orders relate to the element of the intelligence community; and

(D)

examine any minimization procedures used by the element of the intelligence community under title V of the Foreign Intelligence Surveillance Act of 1978 and whether the minimization procedures protect the constitutional rights of United States persons.

(2)

Submission dates for assessment

(A)

Calendar years 2007 through 2009

Not later than September 30, 2011March 31, 2012, the Inspector General of each element of the intelligence community that conducts an assessment under this subsection 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 Representative a report containing the results of the assessment for calendar years 2007 through 2009.

(B)

Calendar years 2010 and 2011

Not later than December 31, 2012March 31, 2013, the Inspector General of each element of the intelligence community that conducts an assessment under this subsection 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 assessment for calendar years 2010 and 2011.

;

(5)

in subsection (e), as redesignated by paragraph (3)—

(A)

in paragraph (1)—

(i)

by striking a report under subsection (c)(1) or (c)(2) and inserting any report under subsection (c) or (d); and

(ii)

by inserting and any Inspector General of an element of the intelligence community that submits a report under this section after Justice; and

(B)

in paragraph (2), by striking the reports submitted under subsection (c)(1) and (c)(2) and inserting any report submitted under subsection (c) or (d);

(6)

in subsection (f) as redesignated by paragraph (3)—

(A)

by striking The reports submitted under subsections (c)(1) and (c)(2) and inserting Each report submitted under subsection (c); and

(B)

by striking subsection (d)(2) and inserting subsection (e)(2); and

(7)

by adding at the end the following:

(g)

Definitions

In this section—

(1)

the term intelligence community has the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 401a); and

(2)

the term United States person has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

.

(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)—

(A)

in paragraph (1), by striking 2006 and inserting 2011; and

(B)

in paragraph (3)(C), by striking (as such term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)));

(2)

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

(3)

Calendar years 2007, 2008, and 2009

Not later than September 30, 2011March 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 subsection (a) for calendar years 2007, 2008, and 2009.

(4)

Calendar years 2010 and 2011

Not later than December 31, 2012March 31, 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 subsection (a) for calendar years 2010 and 2011.

;

(3)

by striking subsection (g) and inserting the following:

(h)

Definitions

In this section—

(1)

the term intelligence community has the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 401a);

(2)

the term national security letter means a request for information under—

(A)

section 2709(a) of title 18, United States Code (to access certain communication service provider records);

(B)

section 1114(a)(5)(A) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)) (to obtain financial institution customer records);

(C)

section 802 of the National Security Act of 1947 (50 U.S.C. 436) (to obtain financial information, records, and consumer reports);

(D)

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

(E)

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

(3)

the term United States person has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

;

(4)

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

(5)

by inserting after subsection (c) the following:

(d)

Intelligence assessment

(1)

In general

For the period beginning on January 1, 2007 and ending on December 31, 2011, the Inspector General of each element of the intelligence community outside of the Department of Justice that issued national security letters in the intelligence activities of the element of the intelligence community shall—

(A)

examine the use of national security letters by the element of the intelligence community during the period;

(B)

describe any noteworthy facts or circumstances relating to the use of national security letters by the element of the intelligence community, including any improper or illegal use of such authority;

(C)

assess the importance of information received under the national security letters to the intelligence activities of the element of the intelligence community; and

(D)

examine the manner in which information received under the national security letters was collected, retained, analyzed, and disseminated.

(2)

Submission dates for assessment

(A)

Calendar years 2007 through 2009

Not later than September 30, 2011March 31, 2012, the Inspector General of each element of the intelligence community that conducts an assessment under this subsection 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 assessment for calendar years 2007 through 2009.

(B)

Calendar years 2010 and 2011

Not later than December 31, 2012March 31, 2013, the Inspector General of any element of the intelligence community that conducts an assessment under this subsection 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 assessment for calendar years 2010 and 2011.

;

(6)

in subsection (e), as redesignated by paragraph (4)—

(A)

in paragraph (1)—

(i)

by striking a report under subsection (c)(1) or (c)(2) and inserting any report under subsection (c) or (d); and

(ii)

by inserting and any Inspector General of an element of the intelligence community that submits a report under this section after Justice; and

(B)

in paragraph (2), by striking the reports submitted under subsection (c)(1) or (c)(2) and inserting any report submitted under subsection (c) or (d); and

(7)

in subsection (f), as redesignated by paragraph (4)—

(A)

by striking The reports submitted under subsections (c)(1) or (c)(2) and inserting Each report submitted under subsection (c); and

(B)

by striking subsection (d)(2) and inserting subsection (e)(2).

(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;

(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 of the Federal Bureau of Investigation 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, or to another department, agency, or instrumentality of Federal, State, local, or tribal governments; 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)

Calendar years 2007 through 2009

Not later than September 30, 2011March 31, 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 audits conducted under paragraph (1) for calendar years 2007 through 2009.

(B)

Calendar years 2010 and 2011

Not later than December 31, 2012March 31, 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 audits conducted under paragraph (1) for calendar years 2010 and 2011.

(4)

Intelligence assessment

(A)

In general

For the period beginning January 1, 2007 and ending on December 31, 2011, the Inspector General of any element of the intelligence community outside of the Department of Justice that used information acquired under a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978 in the intelligence activities of the element of the intelligence community shall—

(i)

assess the importance of the information to the intelligence activities of the element of the intelligence community;

(ii)

examine the manner in which the information was collected, retained, analyzed, and disseminated;

(iii)

describe any noteworthy facts or circumstances relating to orders under title IV of the Foreign Intelligence Surveillance Act of 1978 as the orders relate to the element of the intelligence community; and

(iv)

examine any minimization procedures used by the element of the intelligence community 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.

(B)

Submission dates for assessment

(i)

Calendar years 2007 through 2009

Not later than September 30, 2011March 31, 2012, the Inspector General of each element of the intelligence community that conducts an assessment under this paragraph 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 Representative a report containing the results of the assessment for calendar years 2007 through 2009.

(ii)

Calendar years 2010 and 2011

Not later than December 31, 2012March 31, 2013, the Inspector General of each element of the intelligence community that conducts an assessment under this paragraph 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 Representative a report containing the results of the assessment for calendar years 2010 and 2011.

(5)

Prior notice to attorney general and director of national intelligence; comments

(A)

Notice

Not later than 30 days before the submission of any report paragraph (3) or (4), the Inspector General of the Department of Justice and any Inspector General of an element of the intelligence community that submits a report under this subsection 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 any report submitted under paragraph (3) or (4) as the Attorney General or the Director of National Intelligence may consider necessary.

(6)

Unclassified form

Each report submitted under paragraph (3) and any comments included in that report under paragraph (5)(B) shall be in unclassified form, but may include a classified annex.

(d)

Definitions

In this section—

(1)

the terms foreign intelligence information and United States person have the meanings given those terms in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and

(2)

the term intelligence community has the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 401a).

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.

Procedures

(a)

In general

The Attorney General shall periodically review, and revise as necessary, the procedures adopted by the Attorney General on October 1, 2010 for the collection, use, and storage of information obtained in response to 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)), 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).

(b)

Considerations

In reviewing and revising the procedures described in subsection (a), the Attorney General shall give due consideration to the privacy interests of individuals and the need to protect national security.

(c)

Revisions to procedures and oversight

If the Attorney General makes any significant changes to the procedures described in subsection (a), the Attorney General shall notify and submit a copy of the changes 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.

13.

Severability

If any provision of this Act or an amendment made by this Act, or the application of the provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the amendments made by this Act, and the application of the provisions of this Act and the amendments made by this Act to any other person or circumstance, shall not be affected thereby.

14.

Offset

Of the unobligated balances available in the Department of Justice Assets Forfeiture Fund established under section 524(c)(1) of title 28, United States Code, $5,000,000 are permanently rescinded and shall be returned to the general fund of the Treasury.

15.

Electronic surveillance

Section 105(c)(1)(A) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(1)(A)) is amended by inserting with particularity after description.

16.

Death penalty for certain terror related crimes

(a)

Participation in nuclear and weapons of mass destruction threats to the United States

Section 832(c) of title 18, United States Code, is amended by inserting punished by death if death results to any person from the offense, or after shall be.

(b)

Missile systems to destroy aircraft

Section 2332g(c)(3) of title 18, United States Code, is amended by inserting punished by death or after shall be.

(c)

Atomic weapons

The last sentence of section 222 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2272) is amended by inserting death or before imprisonment for life the last place it appears.

(d)

Radiological dispersal devices

Section 2332h(c)(3) of title 18, United States Code, is amended by inserting death or before imprisonment for life.

(e)

Variola virus

Section 175c(c)(3) of title 18, United States Code, is amended by inserting death or before imprisonment for life.

1517.

Effective date

The amendments made by sections 3, 4, 5, 6, 7, and 11 shall take effect on the date that is 120 days after the date of enactment of this Act.

March 17, 2011

Reported with amendments