I 

111TH CONGRESS 

1ST SESSION H. R. 1800 

To establish reasonable procedural protections for the use of national security 

letters, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 30, 2009 

Mr. NADLER of New York (for himself, Mr. FLAKE, Mr. DELAHUNT, Mr. 

PAUL, Mr. SCOTT of Virginia, Ms. JACKSON-LEE of Texas, Mr. HOLT, 

Mrs. MALONEY, Mr. GRIJALVA, Mr. FARR, Mr. GUTIERREZ, Mr. STARK, 

Ms. WOOLSEY, Mr. CARSON of Indiana, Ms. SHEA-PORTER, Mr. 

MCDERMOTT, Ms. LEE of California, and Mr. HINCHEY) introduced the 

following bill; which was referred to the Committee on the Judiciary, and 

in addition to the Committee on Financial Services, for a period to be 

subsequently determined by the Speaker, in each case for consideration 

of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To establish reasonable procedural protections for the use 

of national security letters, 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 ‘‘National Security Let5 ters Reform Act of 2009’’. 


SMARTINEZ on PROD1PC64 with BILLS
2 

•HR 1800 IH

1 SEC. 2. NATIONAL SECURITY LETTER DEFINED. 

2 In this Act, the term ‘‘national security letter’’ means 

3 a request for information under one of the following provi4 sions of law: 

5 (1) Section 2709(a) of title 18, United States 

6 Code (to access certain communication service pro7 vider records). 

8 (2) Section 1114(a)(5)(A) of the Right to Fi9 nancial Privacy Act (12 U.S.C. 3414(a)(5)(A)) (to 

10 obtain financial institution customer records). 

11 (3) Section 626 of the Fair Credit Reporting 

12 Act (15 U.S.C. 1681u) (to obtain certain financial 

13 information and consumer reports). 

14 (4) Section 627 of the Fair Credit Reporting 

15 Act (15 U.S.C. 1681v) (to obtain credit agency con16 sumer records for counterterrorism investigations). 

17 SEC. 3. PROCEDURAL PROTECTIONS FOR NATIONAL SECU18 RITY LETTERS. 

19 (a) STANDARD.—A national security letter may not 

20 be issued unless the official having authority under law 

21 to issue such a letter certifies that there are specific and 

22 articulable facts giving reason to believe that the informa23 tion or records sought by that letter pertain to a foreign 

24 power or agent of a foreign power. 

25 (b) LIMITATION REGARDING FIRST AMENDMENT AC26 TIVITIES.—A national security letter may not be issued 


SMARTINEZ on PROD1PC64 with BILLS
3 

•HR 1800 IH

1 in connection with an investigation of a United States per2 son solely upon the basis of activities protected by the first 

3 amendment to the Constitution of the United States in 

4 accordance with the Attorney General’s Guidelines on 

5 General Crimes, Racketeering Enterprise and Terrorism 

6 Enterprise Investigations. 

7 (c) OTHER LIMITATIONS.— 

8 (1) LETTER MAY NOT CONTAIN UNREASONABLE

9 REQUIREMENTS OR REQUIRE PRIVILEGED MAT10 TER.—A national security letter may not— 

11 (A) contain any requirement which would 

12 be held to be unreasonable if contained in a 

13 subpoena duces tecum issued by a court of the 

14 United States in aid of a grand jury investiga15 tion of espionage or international terrorism; or 

16 (B) require the production of any docu17 mentary evidence which would be privileged 

18 from disclosure if demanded by a subpoena 

19 duces tecum issued by a court of the United 

20 States in aid of a grand jury investigation of es21 pionage or international terrorism. 

22 (2) NOTICE OF RIGHTS.—A national security 

23 letter shall provide notice of the recipient’s right to 

24 seek judicial review and explain the procedures for 

25 doing so. 


SMARTINEZ on PROD1PC64 with BILLS
4 

•HR 1800 IH

1 (d) NONDISCLOSURE.— 

2 (1) IN GENERAL.—No recipient, or officer, em3 ployee, or agent thereof, shall disclose to any person 

4 that the Federal Bureau of Investigation has sought 

5 or obtained access to information or records under 

6 a national security letter for 30 days after receipt of 

7 such request from the Bureau. 

8 (2) EXCEPTION.—A recipient, or officer, em9 ployee, or agent thereof, of a national security letter 

10 may disclose that the Federal Bureau of Investiga11 tion has sought or obtained access to information or 

12 records under this section to— 

13 (A) those persons to whom disclosure is 

14 necessary in order to comply with an order 

15 under this section; or 

16 (B) an attorney in order to obtain legal ad17 vice regarding such order. 

18 (3) EXTENSION.—The Director of the Federal 

19 Bureau of Investigation, or the Director’s designee 

20 in a position not lower than Deputy Assistant Direc21 tor at Bureau headquarters or a Special Agent in 

22 Charge of a Bureau field office designated by the 

23 Director, may apply for an order prohibiting disclo24 sure that the Federal Bureau of Investigation has 

25 sought or obtained access to information or records 


SMARTINEZ on PROD1PC64 with BILLS
5 

•HR 1800 IH

1 under this section for not more than 180 days after 

2 the order is issued. 

3 (4) JURISDICTION.—An application for an 

4 order pursuant to this subsection shall be filed in 

5 the district court of the United States in any district 

6 within which the authorized investigation that is the 

7 basis for a request pursuant to this section is being 

8 conducted. 

9 (5) APPLICATION CONTENTS.—An application 

10 for an order pursuant to this subsection must state 

11 specific and articulable facts giving the applicant 

12 reason to believe that disclosure that the Federal 

13 Bureau of Investigation has sought or obtained ac14 cess to information or records under this section will 

15 result in— 

16 (A) endangering the life or physical safety 

17 of any person; 

18 (B) flight from prosecution; 

19 (C) destruction of or tampering with evi20 dence; 

21 (D) intimidation of potential witnesses; or 

22 (E) otherwise seriously endangering the 

23 national security of the United States by alert24 ing a target, a target’s associates, or the forVerDate Nov 24 2008 00:19 Apr 01, 2009 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1800.IH H1800

SMARTINEZ on PROD1PC64 with BILLS
6 

•HR 1800 IH

1 eign power of which the target is an agent, of 

2 the Government’s interest in the target. 

3 (6) STANDARD.—The court may issue an ex 

4 parte order in response to an application under 

5 paragraph (3) if the court determines that the order 

6 is narrowly tailored to meet a compelling interest 

7 and that there is reason to believe that disclosure 

8 that the Federal Bureau of Investigation has sought 

9 or obtained access to information or records under 

10 this section will have one of the results described in 

11 paragraph (5). 

12 (7) RENEWAL.—An order under this subsection 

13 may be renewed for additional periods of not more 

14 than 180 days upon another application meeting the 

15 requirements of paragraph (5) and a determination 

16 by the court that the standard of paragraph (6) con17 tinues to be met. 

18 (8) CONFORMING AMENDMENTS.— 

19 (A) Section 2709 of title 18, United States 

20 Code, is amended by striking subsection (c). 

21 (B) Section 1114(a)(5) of the Right to Fi22 nancial Privacy Act of 1978 (12 U.S.C. 

23 3414(a)(5)) is amended by striking subpara24 graph (D). 


SMARTINEZ on PROD1PC64 with BILLS
7 

•HR 1800 IH

1 (C) Section 626 of the Fair Credit Report2 ing Act (15 U.S.C. 1681u) is amended by strik3 ing subsection (d). 

4 (D) Section 627 of the Fair Credit Report5 ing Act (15 U.S.C. 1681v) is amended by strik6 ing subsection (c). 

7 (e) JUDICIAL REVIEW.— 

8 (1) PETITION.—Not later than 20 days after 

9 any person receives a national security, or at any 

10 time before the return date specified in the letter, 

11 whichever period is longer, such person may file, in 

12 the district court of the United States for the judi13 cial district within which such person resides, is 

14 found, or transacts business, a petition for such 

15 court to modify or set aside such letter. The time al16 lowed for compliance with the letter in whole or in 

17 part as deemed proper and ordered by the court 

18 shall not run while the petition is pending in the 

19 court. The petition shall specify each ground upon 

20 which the petitioner relies in seeking relief, and may 

21 be based upon any failure of the letter to comply 

22 with this section or upon any constitutional or other 

23 legal right or privilege of such person. 

24 (2) NONDISCLOSURE.— 


SMARTINEZ on PROD1PC64 with BILLS
8 

•HR 1800 IH

1 (A) IN GENERAL.—A person prohibited by 

2 law from disclosing information about the na3 tional security letter may file, in the district 

4 court of the United States for the judicial dis5 trict within which such person resides, is found, 

6 or transacts business, a petition for the court to 

7 set aside the nondisclosure requirement. Such 

8 petition shall specify each ground upon which 

9 the petitioner relies in seeking relief, and may 

10 be based upon any failure of the nondisclosure 

11 requirement to comply with this section or upon 

12 any constitutional or other legal right or privi13 lege of such person. 

14 (B) STANDARD.—The court shall set aside 

15 the nondisclosure requirement unless the court 

16 determines that the nondisclosure requirement 

17 complies with this section and does not violate 

18 any constitutional or other legal right or privi19 lege of such person. 

20 (3) DISCLOSURE OF CLASSIFIED MATERIAL.— 

21 In making a determination under this subsection, 

22 unless the court finds that such disclosure would not 

23 assist in determining any legal or factual issue perti24 nent to the case, the court shall disclose to the peti25 tioner, the counsel of the petitioner, or both, under 


SMARTINEZ on PROD1PC64 with BILLS
9 

•HR 1800 IH

1 the procedures and standards provided in the Classi2 fied Information Procedures Act (18 U.S.C. App.), 

3 any classified portions of the application, order, or 

4 other related materials. 

5 (f) USE OF INFORMATION.— 

6 (1) IN GENERAL.— 

7 (A) CONSENT.—Information acquired from 

8 a national security letter concerning any United 

9 States person may be used and disclosed by 

10 Federal officers and employees without the con11 sent of the United States person only in accord12 ance with this subsection. 

13 (B) LAWFUL PURPOSE.—No information 

14 acquired by a national security letter may be 

15 used or disclosed by Federal officers or employ16 ees except for lawful purposes. 

17 (2) DISCLOSURE FOR LAW ENFORCEMENT PUR18 POSES.—No information acquired by a national se19 curity letter shall be disclosed for law enforcement 

20 purposes unless such disclosure is accompanied by a 

21 statement that such information, or any information 

22 derived therefrom, may only be used in a criminal 

23 proceeding with the advance authorization of the At24 torney General. 


SMARTINEZ on PROD1PC64 with BILLS
10 

•HR 1800 IH

1 (3) NOTIFICATION OF INTENDED DISCLOSURE

2 BY THE UNITED STATES.—Whenever the United 

3 States intends to enter into evidence or otherwise 

4 use or disclose in any trial, hearing, or other pro5 ceeding in or before any court, department, officer, 

6 agency, regulatory body, or other authority of the 

7 United States against an aggrieved person any infor8 mation obtained by or derived from a national secu9 rity letter, the United States shall, before the trial, 

10 hearing, or other proceeding or at a reasonable time 

11 before an effort to so disclose or so use this informa12 tion or submit it in evidence, notify the aggrieved 

13 person and the court or other authority in which the 

14 information is to be disclosed or used that the 

15 United States intends to so disclose or so use such 

16 information. 

17 (4) NOTIFICATION OF INTENDED DISCLOSURE

18 BY STATE OR POLITICAL SUBDIVISION.—Whenever a 

19 State or political subdivision of a State intends to 

20 enter into evidence or otherwise use or disclose in 

21 any trial, hearing, or other proceeding in or before 

22 any court, department, officer, agency, regulatory 

23 body, or other authority of the State or political sub24 division against an aggrieved person any information 

25 obtained or derived from a request pursuant to this 


SMARTINEZ on PROD1PC64 with BILLS
11 

•HR 1800 IH

1 section, the State or political subdivision thereof 

2 shall notify the aggrieved person, the court or other 

3 authority in which the information is to be disclosed 

4 or used, and the Attorney General that the State or 

5 political subdivision thereof intends to so disclose or 

6 so use such information. 

7 (5) MOTION TO SUPPRESS.— 

8 (A) IN GENERAL.—Any aggrieved person 

9 against whom evidence obtained or derived from 

10 a national security letter is to be, or has been, 

11 introduced or otherwise used or disclosed in any 

12 trial, hearing, or other proceeding in or before 

13 any court, department, officer, agency, regu14 latory body, or other authority of the United 

15 States, or a State or political subdivision there16 of, may move to suppress the evidence obtained 

17 or derived from the request, as the case may be, 

18 on the grounds that— 

19 (i) the information was acquired in 

20 violation of the Constitution or laws of the 

21 United States; or 

22 (ii) the request was not in conformity 

23 with the requirements of this section. 

24 (B) TIMING.—A motion under subpara25 graph (A) shall be made before the trial, hearVerDate Nov 24 2008 00:19 Apr 01, 2009 Jkt 079200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1800.IH H1800

SMARTINEZ on PROD1PC64 with BILLS
12 

•HR 1800 IH

1 ing, or other proceeding unless there was no op2 portunity to make such a motion or the ag3 grieved person concerned was not aware of the 

4 grounds of the motion. 

5 (6) JUDICIAL REVIEW.— 

6 (A) IN GENERAL.—Whenever— 

7 (i) a court or other authority is noti8 fied pursuant to paragraph (3) or (4); 

9 (ii) a motion is made pursuant to 

10 paragraph (5); or 

11 (iii) any motion or request is made by 

12 an aggrieved person pursuant to any other 

13 statute or rule of the United States or any 

14 State before any court or other authority 

15 of the United States or any State to— 

16 (I) discover or obtain materials 

17 relating to a request issued pursuant 

18 to this section; or 

19 (II) discover, obtain, or suppress 

20 evidence or information obtained or 

21 derived from a request issued pursu22 ant to this section; 

23 the United States district court or, where 

24 the motion is made before another author25 ity, the United States district court in the 


SMARTINEZ on PROD1PC64 with BILLS
13 

•HR 1800 IH

1 same district as the authority shall, not2 withstanding any other provision of law 

3 and if the Attorney General files an affi4 davit under oath that disclosure would 

5 harm the national security of the United 

6 States, review in camera the materials as 

7 may be necessary to determine whether the 

8 request was lawful. 

9 (B) DISCLOSURE.—In making a deter10 mination under subparagraph (A), unless the 

11 court finds that such disclosure would not assist 

12 in determining any legal or factual issue perti13 nent to the case, the court shall disclose to the 

14 aggrieved person, the counsel of the aggrieved 

15 person, or both, under the procedures and 

16 standards provided in the Classified Informa17 tion Procedures Act (18 U.S.C. App.), any clas18 sified portions of the application, order, or 

19 other related materials, or evidence or informa20 tion obtained or derived from the order. 

21 (7) EFFECT OF DETERMINATION OF LAWFUL22 NESS.— 

23 (A) UNLAWFUL ORDERS.—If the United 

24 States district court determines pursuant to 

25 paragraph (6) that the national security letter 


SMARTINEZ on PROD1PC64 with BILLS
14 

•HR 1800 IH

1 was not in compliance with the Constitution or 

2 laws of the United States, the court may, in ac3 cordance with the requirements of law, suppress 

4 the evidence which was unlawfully obtained or 

5 derived from the request or otherwise grant the 

6 motion of the aggrieved person. 

7 (B) LAWFUL ORDERS.—If the court deter8 mines that the request was lawful, it may deny 

9 the motion of the aggrieved person except to 

10 the extent that due process requires discovery 

11 or disclosure. 

12 (8) BINDING FINAL ORDERS.—Orders granting 

13 motions or requests under paragraph (6), decisions 

14 under this section that a national security letter was 

15 not lawful, and orders of the United States district 

16 court requiring review or granting disclosure of ap17 plications, orders, or other related materials shall be 

18 final orders and binding upon all courts of the 

19 United States and the several States except a 

20 United States court of appeals or the Supreme 

21 Court. 

22 (g) DEFINITIONS.—In this Act and in each provision 

23 of law authorizing national security letters— 

24 (1) the term ‘‘agent of a foreign power’’ has the 

25 meaning given such term by section 101(b) of the 


SMARTINEZ on PROD1PC64 with BILLS
15 

•HR 1800 IH

1 Foreign Intelligence Surveillance Act of 1978 (50 

2 U.S.C. 1801(b)); 

3 (2) the term ‘‘aggrieved person’’ means a per4 son whose name, address, length of service, or local 

5 or long distance toll records were sought or obtained 

6 under this section; and 

7 (3) the term ‘‘foreign power’’ has the meaning 

8 given such term by section 101(a) of the Foreign In9 telligence Surveillance Act of 1978 (50 U.S.C. 

10 1801(a)). 

11 SEC. 4. CAUSE OF ACTION FOR MISUSE OF NATIONAL SECU12 RITY LETTERS. 

13 A person to whom records requested by a national 

14 security letter pertains may, in a civil action against any 

15 person issuing or obtaining the issuing of such letter, ob16 tain money damages equal to the greater of the actual 

17 damages or $50,000, if the national security letter was 

18 issued contrary to law or the certification on which is was 

19 based was without factual foundation. 

20 SEC. 5. SUNSET OF PATRIOT ACT CHANGES TO NATIONAL 

21 SECURITY LETTER AUTHORITY. 

22 (a) IN GENERAL.—The authority to issue national 

23 security letters shall revert 5 years after the date of the 

24 enactment of this Act to that provided by law on October 

25 25, 2001. 


SMARTINEZ on PROD1PC64 with BILLS
16 

•HR 1800 IH

1 (b) REPORT.—Not later than the date on which the 

2 authority to issue national security letters ceases under 

3 this Act, the Attorney General shall report to Congress 

4 on whether, and if so, how, the authority to issue national 

5 security letters furthered investigations as compared to al6 ternative methods for obtaining relevant information. 

7 SEC. 6. MINIMIZATION PROCEDURES, DISPOSAL OF 

8 WRONGLY ACQUIRED INFORMATION, AND 

9 CONGRESSIONAL REPORTING. 

10 (a) MINIMIZATION PROCEDURES.—The Attorney 

11 General shall establish minimization and destruction pro12 cedures to ensure that information obtained pursuant to 

13 a national security letter regarding persons that are no 

14 longer of interest in an authorized investigation is de15 stroyed. Such procedures shall be transmitted to the Per16 manent Select Committee on Intelligence and the Com17 mittee on the Judiciary of the House of Representatives 

18 and the Select Committee on Intelligence and the Com19 mittee on the Judiciary of the Senate in unclassified for20 mat within 3 months of passage, and shall include— 

21 (1) specific procedures, that are reasonably de22 signed in light of the purpose and technique of the 

23 particular surveillance, to minimize the acquisition 

24 and retention, and prohibit the dissemination, of 

25 nonpublicly available information concerning 


SMARTINEZ on PROD1PC64 with BILLS
17 

•HR 1800 IH

1 unconsenting United States persons consistent with 

2 the need of the United States to obtain, produce, 

3 and disseminate foreign intelligence information; 

4 (2) procedures that provide for the destruction 

5 of information relating to United States persons that 

6 do not reflect activity that would lead a reasonable 

7 agent or analyst to believe that the person is an 

8 agent of a foreign power as defined in 50 U.S.C. 

9 1801(b); 

10 (3) procedures for identifying whether the infor11 mation returned in response to a national security 

12 letter exceeds the scope of the original request and 

13 further procedures for returning or destroying the 

14 superfluous information as soon as possible and be15 fore it is entered into any database or used in any 

16 way; and 

17 (4) deadlines for destruction, minimization, or 

18 return of information described in paragraphs (1) 

19 through (3), that require such destruction, mini20 mization, or return as soon as possible. 

21 (b) DISPOSAL OF WRONGLY ACQUIRED INFORMA22 TION.—Each authority of the Government shall have the 

23 duty to dispose of all private information obtained without 

24 legal authority under color of a national security letter. 


SMARTINEZ on PROD1PC64 with BILLS
18 

•HR 1800 IH

1 (c) REPORT.—The Attorney General shall, semiannu2 ally, submit to the Permanent Select Committee on Intel3 ligence and the Committee on the Judiciary of the House 

4 of Representatives and the Select Committee on Intel5 ligence and the Committee on the Judiciary of the Senate 

6 a unclassified report containing— 

7 (1) the total number of national security letters 

8 issued during the preceding six months, in unclassi9 fied form; 

10 (2) for each of the laws authorizing national se11 curity letters, the total number of national security 

12 letters issued during the preceding six months under 

13 the authority of that law; 

14 (3) for each of the laws authorizing national se15 curity letters, the total number of national security 

16 letters issued during the preceding six months under 

17 the authority of that law for United States persons; 

18 (4) for each of the laws authorizing national se19 curity letters, the total number of national security 

20 letters issued during the preceding six months under 

21 the authority of each such subparagraph for non22 United States persons; 

23 (5) a description of the minimization procedures 

24 adopted by the Attorney General pursuant to sub25 section (c), including any changes to minimization 


SMARTINEZ on PROD1PC64 with BILLS
19 

•HR 1800 IH

1 procedures previously adopted by the Attorney Gen2 eral; 

3 (6) a summary of the challenges made by re4 cipients of national security letters in court; 

5 (7) a description of the extent to which infor6 mation obtained with national security letters has 

7 aided investigations and an explanation of how such 

8 information has aided such investigations; and 

9 (8) a description of the extent to which infor10 mation obtained with national security letters has 

11 aided prosecutions and an explanation of how such 

12 information has been used in or aided such prosecu13 tions. 

14 SEC. 7. REQUIREMENTS RELATING TO CLAIMS OF EMER15 GENCY IN CONNECTION WITH CERTAIN NA16 TIONAL SECURITY LETTERS. 

17 Section 2702 of title 18, United States Code, is 

18 amended— 

19 (1) in subsection (b), so that paragraph (8) 

20 reads as follows: 

21 ‘‘(8) to a governmental entity, if the provider 

22 reasonably believes that an emergency involving im23 mediate danger of death or serious physical injury to 

24 any person justifies disclosure of the information;’’; 


SMARTINEZ on PROD1PC64 with BILLS
20 

•HR 1800 IH

1 (2) in subsection (c), so that paragraph (4) 

2 reads as follows: 

3 ‘‘(4) to a governmental entity if the provider 

4 has a reasonable belief that an emergency involving 

5 the imminent danger of death or serious physical in6 jury to any person requires disclosure without delay 

7 of information relating to the emergency;’’; and 

8 (3) so that subsection (d) reads as follows: 

9 ‘‘(d) REPORTING OF EMERGENCY DISCLOSURES.— 

10 On a semiannual basis the Attorney General shall submit 

11 to the Committee on the Judiciary of the House of Rep12 resentatives and the Committee on the Judiciary of the 

13 Senate a report containing— 

14 ‘‘(1) the number of accounts from which the 

15 Department of Justice has received voluntary disclo16 sures under subsection (b)(8), and a summary of the 

17 factual basis for each emergency disclosure; and 

18 ‘‘(2) the number and type of communications 

19 the Department of Justice has received by voluntary 

20 disclosure under subsection (c)(4), and a summary 

21 of the factual basis for each emergency disclosure.’’. 

Æ 


SMARTINEZ on PROD1PC64 with BILLS