S. 2271

One Hundred Ninth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the third day of January, two thousand and six

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.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

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

Reauthorizing Amendments Act of 2006’’.

SEC. 2. DEFINITION.

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

entitled ‘‘An Act to extend and modify authorities needed to combat

terrorism, and for other purposes.’’ (109th Congress, 2d Session).

SEC. 3. JUDICIAL REVIEW OF FISA ORDERS.

Subsection (f) of section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861), as amended by the applicable

Act, is amended to read as follows:

‘‘(f)(1) In this subsection—

‘‘(A) the term ‘production order’ means an order to produce

any tangible thing under this section; and

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

under subsection (d).

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

the legality of that order by filing a petition with the pool established by section 103(e)(1). Not less than 1 year after the date

of the issuance of the production order, the recipient of a production

order may challenge the nondisclosure order imposed in connection

with such production order by filing a petition to modify or set

aside such nondisclosure order, consistent with the requirements

of subparagraph (C), with the pool established by section 103(e)(1).

‘‘(ii) The presiding judge shall immediately assign a petition

under clause (i) to 1 of the judges serving in the pool established

by section 103(e)(1). Not later than 72 hours after the assignment

of such petition, the assigned judge shall conduct an initial review

of the petition. If the assigned judge determines that the petition

is frivolous, the assigned judge shall immediately deny the petition

and affirm the production order or nondisclosure order. If the

assigned judge determines the petition is not frivolous, the assigned

judge shall promptly consider the petition in accordance with the

procedures established under section 103(e)(2).
S. 2271—2

‘‘(iii) The assigned judge shall promptly provide a written statement for the record of the reasons for any determination under

this subsection. Upon the request of the Government, any order

setting aside a nondisclosure order shall be stayed pending review

pursuant to paragraph (3).

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

a production order may grant such petition only if the judge finds

that such order does not meet the requirements of this section

or is otherwise unlawful. If the judge does not modify or set aside

the production order, the judge shall immediately affirm such order,

and order the recipient to comply therewith.

‘‘(C)(i) A judge considering a petition to modify or set aside

a nondisclosure order may grant such petition only if the judge

finds that there is no reason to believe that disclosure may endanger

the national security of the United States, interfere with a criminal,

counterterrorism, or counterintelligence investigation, interfere with

diplomatic relations, or endanger the life or physical safety of any

person.

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

Deputy Attorney General, an Assistant Attorney General, or the

Director of the Federal Bureau of Investigation certifies that disclosure may endanger the national security of the United States or

interfere with diplomatic relations, such certification shall be

treated as conclusive, unless the judge finds that the certification

was made in bad faith.

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

a nondisclosure order, the recipient of such order shall be precluded

for a period of 1 year from filing another such petition with respect

to such nondisclosure order.

‘‘(D) Any production or nondisclosure order not explicitly modified or set aside consistent with this subsection shall remain in

full effect.

‘‘(3) A petition for review of a decision under paragraph (2)

to affirm, modify, or set aside an order by the Government or

any person receiving such order shall be made to the court of

review established under section 103(b), which shall have jurisdiction to consider such petitions. The court of review shall provide

for the record a written statement of the reasons for its decision

and, on petition by the Government or any person receiving such

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

seal to the Supreme Court of the United States, which shall have

jurisdiction to review such decision.

‘‘(4) Judicial proceedings under this subsection shall be concluded as expeditiously as possible. The record of proceedings,

including petitions filed, orders granted, and statements of reasons

for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation

with the Attorney General and the Director of National Intelligence.

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

seal. In any proceedings under this subsection, the court shall,

upon request of the Government, review ex parte and in camera

any Government submission, or portions thereof, which may include

classified information.’’.
S. 2271—3

SEC. 4. DISCLOSURES.

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

Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(d)(2)), as

amended by the applicable Act, is amended to read as follows: ‘‘(C) At the request of the Director of the Federal Bureau

of Investigation or the designee of the Director, any person making

or intending to make a disclosure under subparagraph (A) or (C)

of paragraph (1) shall identify to the Director or such designee

the person to whom such disclosure will be made or to whom

such disclosure was made prior to the request.’’. (b) TITLE 18.—Paragraph (4) of section 2709(c) of title 18,

United States Code, as amended by the applicable Act, is amended

to read as follows: ‘‘(4) At the request of the Director of the Federal Bureau

of Investigation or the designee of the Director, any person

making or intending to make a disclosure under this section

shall identify to the Director or such designee the person to

whom such disclosure will be made or to whom such disclosure

was made prior to the request, except that nothing in this

section shall require a person to inform the Director or such

designee of the identity of an attorney to whom disclosure

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

assistance with respect to the request under subsection (a).’’.

(c) FAIR CREDIT REPORTING ACT.—

(1) IN GENERAL.—Paragraph (4) of section 626(d) of the

Fair Credit Reporting Act (15 U.S.C. 1681u(d)), as amended

by the applicable Act, is amended to read as follows:

‘‘(4) At the request of the Director of the Federal Bureau

of Investigation or the designee of the Director, any person

making or intending to make a disclosure under this section

shall identify to the Director or such designee the person to

whom such disclosure will be made or to whom such disclosure

was made prior to the request, except that nothing in this

section shall require a person to inform the Director or such

designee of the identity of an attorney to whom disclosure

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

assistance with respect to the request for the identity of financial institutions or a consumer report respecting any consumer

under this section.’’.

(2) OTHER AGENCIES.—Paragraph (4) of section 627(c) of

the Fair Credit Reporting Act (15 U.S.C. 1681v(c)), as amended

by the applicable Act, is amended to read as follows:

‘‘(4) At the request of the authorized government agency,

any person making or intending to make a disclosure under

this section shall identify to the requesting official of the authorized government agency the person to whom such disclosure

will be made or to whom such disclosure was made prior

to the request, except that nothing in this section shall require

a person to inform the requesting official of the identity of

an attorney to whom disclosure was made or will be made

to obtain legal advice or legal assistance with respect to the

request for information under subsection (a).’’. (d) RIGHT TO FINANCIAL PRIVACY ACT.—

(1) IN GENERAL.—Subparagraph (D) of section 1114(a)(3)

of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(3)),

as amended by the applicable Act, is amended to read as

follows:
S. 2271—4

‘‘(D) At the request of the authorized Government authority

or the Secret Service, any person making or intending to make

a disclosure under this section shall identify to the requesting

official of the authorized Government authority or the Secret

Service the person to whom such disclosure will be made or

to whom such disclosure was made prior to the request, except

that nothing in this section shall require a person to inform

the requesting official of the authorized Government authority

or the Secret Service of the identity of an attorney to whom

disclosure was made or will be made to obtain legal advice

or legal assistance with respect to the request for financial

records under this subsection.’’.

(2) FEDERAL BUREAU OF INVESTIGATION.—Clause (iv) of section 1114(a)(5)(D) of the Right to Financial Privacy Act (12

U.S.C. 3414(a)(5)(D)), as amended by the applicable Act, is

amended to read as follows:

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

Bureau of Investigation or the designee of the Director,

any person making or intending to make a disclosure

under this section shall identify to the Director or

such designee the person to whom such disclosure will

be made or to whom such disclosure was made prior

to the request, except that nothing in this section shall

require a person to inform the Director or such designee of the identity of an attorney to whom disclosure

was made or will be made to obtain legal advice or

legal assistance with respect to the request for financial

records under subparagraph (A).’’.

(e) NATIONAL SECURITY ACT OF 1947.—Paragraph (4) of section

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

as amended by the applicable Act, is amended to read as follows:

‘‘(4) At the request of the authorized investigative agency,

any person making or intending to make a disclosure under

this section shall identify to the requesting official of the authorized investigative agency the person to whom such disclosure

will be made or to whom such disclosure was made prior

to the request, except that nothing in this section shall require

a person to inform the requesting official of the identity of

an attorney to whom disclosure was made or will be made

to obtain legal advice or legal assistance with respect to the

request under subsection (a).’’.

SEC. 5. PRIVACY PROTECTIONS FOR LIBRARY PATRONS.

Section 2709 of title 18, United States Code, as amended by

the applicable Act, is amended by adding at the end the following:

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

213(1) of the Library Services and Technology Act (20 U.S.C.

9122(1)), the services of which include access to the Internet, books,

journals, magazines, newspapers, or other similar forms of communication in print or digitally by patrons for their use, review, examination, or circulation, is not a wire or electronic communication

service provider for purposes of this section, unless the library

is providing the services defined in section 2510(15) (‘electronic

communication service’) of this title.’’.
S. 2271—5

This Act shall become effective immediately upon enactment.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.