109TH CONGRESS

2D SESSION S. 2271

AN ACT

To clarify that individuals who receive FISA orders can

challenge nondisclosure requirements, that individuals

who receive national security letters are not required

to disclose the name of their attorney, that libraries

are not wire or electronic communication service providers unless they provide specific services, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘USA PATRIOT Act

5 Additional Reauthorizing Amendments Act of 2006’’.
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1 SEC. 2. DEFINITION.

2 As used in this Act, the term ‘‘applicable Act’’ means

3 the Act entitled ‘‘An Act to extend and modify authorities

4 needed to combat terrorism, and for other purposes.’’

5 (109th Congress, 2d Session).

6 SEC. 3. JUDICIAL REVIEW OF FISA ORDERS.

7 Subsection (f) of section 501 of the Foreign Intel8 ligence Surveillance Act of 1978 (50 U.S.C. 1861), as

9 amended by the applicable Act, is amended to read as fol10 lows:

11 ‘‘(f)(1) In this subsection—

12 ‘‘(A) the term ‘production order’ means an

13 order to produce any tangible thing under this sec14 tion; and

15 ‘‘(B) the term ‘nondisclosure order’ means an

16 order imposed under subsection (d).

17 ‘‘(2)(A)(i) A person receiving a production order may

18 challenge the legality of that order by filing a petition with

19 the pool established by section 103(e)(1). Not less than

20 1 year after the date of the issuance of the production

21 order, the recipient of a production order may challenge

22 the nondisclosure order imposed in connection with such

23 production order by filing a petition to modify or set aside

24 such nondisclosure order, consistent with the requirements

25 of subparagraph (C), with the pool established by section

26 103(e)(1).
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1 ‘‘(ii) The presiding judge shall immediately assign a

2 petition under clause (i) to 1 of the judges serving in the

3 pool established by section 103(e)(1). Not later than 72

4 hours after the assignment of such petition, the assigned

5 judge shall conduct an initial review of the petition. If the

6 assigned judge determines that the petition is frivolous,

7 the assigned judge shall immediately deny the petition and

8 affirm the production order or nondisclosure order. If the

9 assigned judge determines the petition is not frivolous, the

10 assigned judge shall promptly consider the petition in ac11 cordance with the procedures established under section

12 103(e)(2).

13 ‘‘(iii) The assigned judge shall promptly provide a

14 written statement for the record of the reasons for any

15 determination under this subsection. Upon the request of

16 the Government, any order setting aside a nondisclosure

17 order shall be stayed pending review pursuant to para18 graph (3).

19 ‘‘(B) A judge considering a petition to modify or set

20 aside a production order may grant such petition only if

21 the judge finds that such order does not meet the require22 ments of this section or is otherwise unlawful. If the judge

23 does not modify or set aside the production order, the

24 judge shall immediately affirm such order, and order the

25 recipient to comply therewith.
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1 ‘‘(C)(i) A judge considering a petition to modify or

2 set aside a nondisclosure order may grant such petition

3 only if the judge finds that there is no reason to believe

4 that disclosure may endanger the national security of the

5 United States, interfere with a criminal, counterterrorism,

6 or counterintelligence investigation, interfere with diplo7 matic relations, or endanger the life or physical safety of

8 any person.

9 ‘‘(ii) If, upon filing of such a petition, the Attorney

10 General, Deputy Attorney General, an Assistant Attorney

11 General, or the Director of the Federal Bureau of Inves12 tigation certifies that disclosure may endanger the na13 tional security of the United States or interfere with diplo14 matic relations, such certification shall be treated as con15 clusive, unless the judge finds that the certification was

16 made in bad faith.

17 ‘‘(iii) If the judge denies a petition to modify or set

18 aside a nondisclosure order, the recipient of such order

19 shall be precluded for a period of 1 year from filing an20 other such petition with respect to such nondisclosure

21 order.

22 ‘‘(D) Any production or nondisclosure order not ex23 plicitly modified or set aside consistent with this sub24 section shall remain in full effect.
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1 ‘‘(3) A petition for review of a decision under para2 graph (2) to affirm, modify, or set aside an order by the

3 Government or any person receiving such order shall be

4 made to the court of review established under section

5 103(b), which shall have jurisdiction to consider such peti6 tions. The court of review shall provide for the record a

7 written statement of the reasons for its decision and, on

8 petition by the Government or any person receiving such

9 order for writ of certiorari, the record shall be transmitted

10 under seal to the Supreme Court of the United States,

11 which shall have jurisdiction to review such decision.

12 ‘‘(4) Judicial proceedings under this subsection shall

13 be concluded as expeditiously as possible. The record of

14 proceedings, including petitions filed, orders granted, and

15 statements of reasons for decision, shall be maintained

16 under security measures established by the Chief Justice

17 of the United States, in consultation with the Attorney

18 General and the Director of National Intelligence.

19 ‘‘(5) All petitions under this subsection shall be filed

20 under seal. In any proceedings under this subsection, the

21 court shall, upon request of the Government, review ex

22 parte and in camera any Government submission, or por23 tions thereof, which may include classified information.’’.
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1 SEC. 4. DISCLOSURES.

2 (a) FISA.—Subparagraph (C) of section 501(d)(2)

3 of the Foreign Intelligence Surveillance Act of 1978 (50

4 U.S.C. 1861(d)(2)), as amended by the applicable Act, is

5 amended to read as follows:

6 ‘‘(C) At the request of the Director of the Federal

7 Bureau of Investigation or the designee of the Director,

8 any person making or intending to make a disclosure

9 under subparagraph (A) or (C) of paragraph (1) shall

10 identify to the Director or such designee the person to

11 whom such disclosure will be made or to whom such disclo12 sure was made prior to the request.’’.

13 (b) TITLE 18.—Paragraph (4) of section 2709(c) of

14 title 18, United States Code, as amended by the applicable

15 Act, is amended to read as follows:

16 ‘‘(4) At the request of the Director of the Fed17 eral Bureau of Investigation or the designee of the

18 Director, any person making or intending to make

19 a disclosure under this section shall identify to the

20 Director or such designee the person to whom such

21 disclosure will be made or to whom such disclosure

22 was made prior to the request, except that nothing

23 in this section shall require a person to inform the

24 Director or such designee of the identity of an attor25 ney to whom disclosure was made or will be made
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1 to obtain legal advice or legal assistance with respect

2 to the request under subsection (a).’’.

3 (c) FAIR CREDIT REPORTING ACT.—

4 (1) IN GENERAL.—Paragraph (4) of section

5 626(d) of the Fair Credit Reporting Act (15 U.S.C.

6 1681u(d)), as amended by the applicable Act, is

7 amended to read as follows:

8 ‘‘(4) At the request of the Director of the Fed9 eral Bureau of Investigation or the designee of the

10 Director, any person making or intending to make

11 a disclosure under this section shall identify to the

12 Director or such designee the person to whom such

13 disclosure will be made or to whom such disclosure

14 was made prior to the request, except that nothing

15 in this section shall require a person to inform the

16 Director or such designee of the identity of an attor17 ney to whom disclosure was made or will be made

18 to obtain legal advice or legal assistance with respect

19 to the request for the identity of financial institu20 tions or a consumer report respecting any consumer

21 under this section.’’.

22 (2) OTHER AGENCIES.—Paragraph (4) of sec23 tion 627(c) of the Fair Credit Reporting Act (15

24 U.S.C. 1681v(c)), as amended by the applicable Act,

25 is amended to read as follows:
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1 ‘‘(4) At the request of the authorized govern2 ment agency, any person making or intending to

3 make a disclosure under this section shall identify to

4 the requesting official of the authorized government

5 agency the person to whom such disclosure will be

6 made or to whom such disclosure was made prior to

7 the request, except that nothing in this section shall

8 require a person to inform the requesting official of

9 the identity of an attorney to whom disclosure was

10 made or will be made to obtain legal advice or legal

11 assistance with respect to the request for informa12 tion under subsection (a).’’.

13 (d) RIGHT TO FINANCIAL PRIVACY ACT.—

14 (1) IN GENERAL.—Subparagraph (D) of section

15 1114(a)(3) of the Right to Financial Privacy Act

16 (12 U.S.C. 3414(a)(3)), as amended by the applica17 ble Act, is amended to read as follows:

18 ‘‘(D) At the request of the authorized Govern19 ment authority or the Secret Service, any person

20 making or intending to make a disclosure under this

21 section shall identify to the requesting official of the

22 authorized Government authority or the Secret Serv23 ice the person to whom such disclosure will be made

24 or to whom such disclosure was made prior to the

25 request, except that nothing in this section shall re-
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1 quire a person to inform the requesting official of

2 the authorized Government authority or the Secret

3 Service of the identity of an attorney to whom dis4 closure was made or will be made to obtain legal ad5 vice or legal assistance with respect to the request

6 for financial records under this subsection.’’.

7 (2) FEDERAL BUREAU OF INVESTIGATION.—

8 Clause (iv) of section 1114(a)(5)(D) of the Right to

9 Financial Privacy Act (12 U.S.C. 3414(a)(5)(D)), as

10 amended by the applicable Act, is amended to read

11 as follows:

12 ‘‘(iv) At the request of the Director of

13 the Federal Bureau of Investigation or the

14 designee of the Director, any person mak15 ing or intending to make a disclosure

16 under this section shall identify to the Di17 rector or such designee the person to

18 whom such disclosure will be made or to

19 whom such disclosure was made prior to

20 the request, except that nothing in this

21 section shall require a person to inform the

22 Director or such designee of the identity of

23 an attorney to whom disclosure was made

24 or will be made to obtain legal advice or

25 legal assistance with respect to the request
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1 for financial records under subparagraph

2 (A).’’.

3 (e) NATIONAL SECURITY ACT OF 1947.—Paragraph

4 (4) of section 802(b) of the National Security Act of 1947

5 (50 U.S.C. 436(b)), as amended by the applicable Act, is

6 amended to read as follows:

7 ‘‘(4) At the request of the authorized investiga8 tive agency, any person making or intending to

9 make a disclosure under this section shall identify to

10 the requesting official of the authorized investigative

11 agency the person to whom such disclosure will be

12 made or to whom such disclosure was made prior to

13 the request, except that nothing in this section shall

14 require a person to inform the requesting official of

15 the identity of an attorney to whom disclosure was

16 made or will be made to obtain legal advice or legal

17 assistance with respect to the request under sub18 section (a).’’.

19 SEC. 5. PRIVACY PROTECTIONS FOR LIBRARY PATRONS.

20 Section 2709 of title 18, United States Code, as

21 amended by the applicable Act, is amended by adding at

22 the end the following:

23 ‘‘(f) LIBRARIES.—A library (as that term is defined

24 in section 213(1) of the Library Services and Technology

25 Act (20 U.S.C. 9122(1)), the services of which include ac-
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1 cess to the Internet, books, journals, magazines, news2 papers, or other similar forms of communication in print

3 or digitally by patrons for their use, review, examination,

4 or circulation, is not a wire or electronic communication

5 service provider for purposes of this section, unless the

6 library is providing the services defined in section

7 2510(15) (‘electronic communication service’) of this

8 title.’’.

9 This Act shall become effective immediately upon en10 actment.

Passed the Senate March 1, 2006.

Attest:

Secretary.
109TH CONGRESS

2D SESSION S. 2271

AN ACT

To clarify that individuals who receive FISA orders

vide specific services, and for other purposes.communication service providers unless they protorney, that libraries are not wire or electronicare not required to disclose the name of their atindividuals who receive national security letterscan challenge nondisclosure requirements, that