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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1800 Introduced in House (IH)]

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.

    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 ``National Security Letters Reform Act 
of 2009''.

SEC. 2. NATIONAL SECURITY LETTER DEFINED.

    In this Act, the term ``national security letter'' means a request 
for information under one of the following provisions of law:
            (1) Section 2709(a) of title 18, United States Code (to 
        access certain communication service provider records).
            (2) Section 1114(a)(5)(A) of the Right to Financial Privacy 
        Act (12 U.S.C. 3414(a)(5)(A)) (to obtain financial institution 
        customer records).
            (3) Section 626 of the Fair Credit Reporting Act (15 U.S.C. 
        1681u) (to obtain certain financial information and consumer 
        reports).
            (4) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 
        1681v) (to obtain credit agency consumer records for 
        counterterrorism investigations).

SEC. 3. PROCEDURAL PROTECTIONS FOR NATIONAL SECURITY LETTERS.

    (a) Standard.--A national security letter may not be issued unless 
the official having authority under law to issue such a letter 
certifies that there are specific and articulable facts giving reason 
to believe that the information or records sought by that letter 
pertain to a foreign power or agent of a foreign power.
    (b) Limitation Regarding First Amendment Activities.--A national 
security letter may not be issued in connection with an investigation 
of a United States person solely upon the basis of activities protected 
by the first amendment to the Constitution of the United States in 
accordance with the Attorney General's Guidelines on General Crimes, 
Racketeering Enterprise and Terrorism Enterprise Investigations.
    (c) Other Limitations.--
            (1) Letter may not contain unreasonable requirements or 
        require privileged matter.--A national security letter may 
        not--
                    (A) contain any requirement which would be held to 
                be unreasonable if contained in a subpoena duces tecum 
                issued by a court of the United States in aid of a 
                grand jury investigation of espionage or international 
                terrorism; or
                    (B) require the production of any documentary 
                evidence which would be privileged from disclosure if 
                demanded by a subpoena duces tecum issued by a court of 
                the United States in aid of a grand jury investigation 
                of espionage or international terrorism.
            (2) Notice of rights.--A national security letter shall 
        provide notice of the recipient's right to seek judicial review 
        and explain the procedures for doing so.
    (d) Nondisclosure.--
            (1) In general.--No recipient, or officer, employee, or 
        agent thereof, shall disclose to any person that the Federal 
        Bureau of Investigation has sought or obtained access to 
        information or records under a national security letter for 30 
        days after receipt of such request from the Bureau.
            (2) Exception.--A recipient, or officer, employee, or agent 
        thereof, of a national security letter may disclose that the 
        Federal Bureau of Investigation has sought or obtained access 
        to information or records under this section to--
                    (A) those persons to whom disclosure is necessary 
                in order to comply with an order under this section; or
                    (B) an attorney in order to obtain legal advice 
                regarding such order.
            (3) Extension.--The Director of the Federal Bureau of 
        Investigation, or the Director's designee in a position not 
        lower than Deputy Assistant Director at Bureau headquarters or 
        a Special Agent in Charge of a Bureau field office designated 
        by the Director, may apply for an order prohibiting disclosure 
        that the Federal Bureau of Investigation has sought or obtained 
        access to information or records under this section for not 
        more than 180 days after the order is issued.
            (4) Jurisdiction.--An application for an order pursuant to 
        this subsection shall be filed in the district court of the 
        United States in any district within which the authorized 
        investigation that is the basis for a request pursuant to this 
        section is being conducted.
            (5) Application contents.--An application for an order 
        pursuant to this subsection must state specific and articulable 
        facts giving the applicant reason to believe that disclosure 
        that the Federal Bureau of Investigation has sought or obtained 
        access to information or records under this section will result 
        in--
                    (A) endangering the life or physical safety of any 
                person;
                    (B) flight from prosecution;
                    (C) destruction of or tampering with evidence;
                    (D) intimidation of potential witnesses; or
                    (E) otherwise seriously endangering the national 
                security of the United States by alerting a target, a 
                target's associates, or the foreign power of which the 
                target is an agent, of the Government's interest in the 
                target.
            (6) Standard.--The court may issue an ex parte order in 
        response to an application under paragraph (3) if the court 
        determines that the order is narrowly tailored to meet a 
        compelling interest and that there is reason to believe that 
        disclosure that the Federal Bureau of Investigation has sought 
        or obtained access to information or records under this section 
        will have one of the results described in paragraph (5).
            (7) Renewal.--An order under this subsection may be renewed 
        for additional periods of not more than 180 days upon another 
        application meeting the requirements of paragraph (5) and a 
        determination by the court that the standard of paragraph (6) 
        continues to be met.
            (8) Conforming amendments.--
                    (A) Section 2709 of title 18, United States Code, 
                is amended by striking subsection (c).
                    (B) 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).
                    (C) Section 626 of the Fair Credit Reporting Act 
                (15 U.S.C. 1681u) is amended by striking subsection 
                (d).
                    (D) Section 627 of the Fair Credit Reporting Act 
                (15 U.S.C. 1681v) is amended by striking subsection 
                (c).
    (e) Judicial Review.--
            (1) Petition.--Not later than 20 days after any person 
        receives a national security, or at any time before the return 
        date specified in the letter, whichever period is longer, such 
        person may file, in the district court of the United States for 
        the judicial district within which such person resides, is 
        found, or transacts business, a petition for such court to 
        modify or set aside such letter. The time allowed for 
        compliance with the letter in whole or in part as deemed proper 
        and ordered by the court shall not run while the petition is 
        pending in the court. The petition shall specify each ground 
        upon which the petitioner relies in seeking relief, and may be 
        based upon any failure of the letter to comply with this 
        section or upon any constitutional or other legal right or 
        privilege of such person.
            (2) Nondisclosure.--
                    (A) In general.--A person prohibited by law from 
                disclosing information about the national security 
                letter may file, in the district court of the United 
                States for the judicial district within which such 
                person resides, is found, or transacts business, a 
                petition for the court to set aside the nondisclosure 
                requirement. Such petition shall specify each ground 
                upon which the petitioner relies in seeking relief, and 
                may be based upon any failure of the nondisclosure 
                requirement to comply with this section or upon any 
                constitutional or other legal right or privilege of 
                such person.
                    (B) Standard.--The court shall set aside the 
                nondisclosure requirement unless the court determines 
                that the nondisclosure requirement complies with this 
                section and does not violate any constitutional or 
                other legal right or privilege of such person.
            (3) Disclosure of classified material.--In making a 
        determination under this subsection, unless the court finds 
        that such disclosure would not assist in determining any legal 
        or factual issue pertinent to the case, the court shall 
        disclose to the petitioner, the counsel of the petitioner, or 
        both, under the procedures and standards provided in the 
        Classified Information Procedures Act (18 U.S.C. App.), any 
        classified portions of the application, order, or other related 
        materials.
    (f) Use of Information.--
            (1) In general.--
                    (A) Consent.--Information acquired from a national 
                security letter concerning any United States person may 
                be used and disclosed by Federal officers and employees 
                without the consent of the United States person only in 
                accordance with this subsection.
                    (B) Lawful purpose.--No information acquired by a 
                national security letter may be used or disclosed by 
                Federal officers or employees except for lawful 
                purposes.
            (2) Disclosure for law enforcement purposes.--No 
        information acquired by a national security letter shall be 
        disclosed for law enforcement purposes unless such disclosure 
        is accompanied by a statement that such information, or any 
        information derived therefrom, may only be used in a criminal 
        proceeding with the advance authorization of the Attorney 
        General.
            (3) Notification of intended disclosure by the united 
        states.--Whenever the United States intends to enter into 
        evidence or otherwise use or disclose in any trial, hearing, or 
        other proceeding in or before any court, department, officer, 
        agency, regulatory body, or other authority of the United 
        States against an aggrieved person any information obtained by 
        or derived from a national security letter, the United States 
        shall, before the trial, hearing, or other proceeding or at a 
        reasonable time before an effort to so disclose or so use this 
        information or submit it in evidence, notify the aggrieved 
        person and the court or other authority in which the 
        information is to be disclosed or used that the United States 
        intends to so disclose or so use such information.
            (4) Notification of intended disclosure by state or 
        political subdivision.--Whenever a State or political 
        subdivision of a State intends to enter into evidence or 
        otherwise use or disclose in any trial, hearing, or other 
        proceeding in or before any court, department, officer, agency, 
        regulatory body, or other authority of the State or political 
        subdivision against an aggrieved person any information 
        obtained or derived from a request pursuant to this section, 
        the State or political subdivision thereof shall notify the 
        aggrieved person, the court or other authority in which the 
        information is to be disclosed or used, and the Attorney 
        General that the State or political subdivision thereof intends 
        to so disclose or so use such information.
            (5) Motion to suppress.--
                    (A) In general.--Any aggrieved person against whom 
                evidence obtained or derived from a national security 
                letter is to be, or has been, introduced or otherwise 
                used or disclosed in any trial, hearing, or other 
                proceeding in or before any court, department, officer, 
                agency, regulatory body, or other authority of the 
                United States, or a State or political subdivision 
                thereof, may move to suppress the evidence obtained or 
                derived from the request, as the case may be, on the 
                grounds that--
                            (i) the information was acquired in 
                        violation of the Constitution or laws of the 
                        United States; or
                            (ii) the request was not in conformity with 
                        the requirements of this section.
                    (B) Timing.--A motion under subparagraph (A) shall 
                be made before the trial, hearing, or other proceeding 
                unless there was no opportunity to make such a motion 
                or the aggrieved person concerned was not aware of the 
                grounds of the motion.
            (6) Judicial review.--
                    (A) In general.--Whenever--
                            (i) a court or other authority is notified 
                        pursuant to paragraph (3) or (4);
                            (ii) a motion is made pursuant to paragraph 
                        (5); or
                            (iii) any motion or request is made by an 
                        aggrieved person pursuant to any other statute 
                        or rule of the United States or any State 
                        before any court or other authority of the 
                        United States or any State to--
                                    (I) discover or obtain materials 
                                relating to a request issued pursuant 
                                to this section; or
                                    (II) discover, obtain, or suppress 
                                evidence or information obtained or 
                                derived from a request issued pursuant 
                                to this section;
                        the United States district court or, where the 
                        motion is made before another authority, the 
                        United States district court in the same 
                        district as the authority shall, 
                        notwithstanding any other provision of law and 
                        if the Attorney General files an affidavit 
                        under oath that disclosure would harm the 
                        national security of the United States, review 
                        in camera the materials as may be necessary to 
                        determine whether the request was lawful.
                    (B) Disclosure.--In making a determination under 
                subparagraph (A), unless the court finds that such 
                disclosure would not assist in determining any legal or 
                factual issue pertinent to the case, the court shall 
                disclose to the aggrieved person, the counsel of the 
                aggrieved person, or both, under the procedures and 
                standards provided in the Classified Information 
                Procedures Act (18 U.S.C. App.), any classified 
                portions of the application, order, or other related 
                materials, or evidence or information obtained or 
                derived from the order.
            (7) Effect of determination of lawfulness.--
                    (A) Unlawful orders.--If the United States district 
                court determines pursuant to paragraph (6) that the 
                national security letter was not in compliance with the 
                Constitution or laws of the United States, the court 
                may, in accordance with the requirements of law, 
                suppress the evidence which was unlawfully obtained or 
                derived from the request or otherwise grant the motion 
                of the aggrieved person.
                    (B) Lawful orders.--If the court determines that 
                the request was lawful, it may deny the motion of the 
                aggrieved person except to the extent that due process 
                requires discovery or disclosure.
            (8) Binding final orders.--Orders granting motions or 
        requests under paragraph (6), decisions under this section that 
        a national security letter was not lawful, and orders of the 
        United States district court requiring review or granting 
        disclosure of applications, orders, or other related materials 
        shall be final orders and binding upon all courts of the United 
        States and the several States except a United States court of 
        appeals or the Supreme Court.
    (g) Definitions.--In this Act and in each provision of law 
authorizing national security letters--
            (1) the term ``agent of a foreign power'' has the meaning 
        given such term by section 101(b) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801(b));
            (2) the term ``aggrieved person'' means a person whose 
        name, address, length of service, or local or long distance 
        toll records were sought or obtained under this section; and
            (3) the term ``foreign power'' has the meaning given such 
        term by section 101(a) of the Foreign Intelligence Surveillance 
        Act of 1978 (50 U.S.C. 1801(a)).

SEC. 4. CAUSE OF ACTION FOR MISUSE OF NATIONAL SECURITY LETTERS.

    A person to whom records requested by a national security letter 
pertains may, in a civil action against any person issuing or obtaining 
the issuing of such letter, obtain money damages equal to the greater 
of the actual damages or $50,000, if the national security letter was 
issued contrary to law or the certification on which is was based was 
without factual foundation.

SEC. 5. SUNSET OF PATRIOT ACT CHANGES TO NATIONAL SECURITY LETTER 
              AUTHORITY.

    (a) In General.--The authority to issue national security letters 
shall revert 5 years after the date of the enactment of this Act to 
that provided by law on October 25, 2001.
    (b) Report.--Not later than the date on which the authority to 
issue national security letters ceases under this Act, the Attorney 
General shall report to Congress on whether, and if so, how, the 
authority to issue national security letters furthered investigations 
as compared to alternative methods for obtaining relevant information.

SEC. 6. MINIMIZATION PROCEDURES, DISPOSAL OF WRONGLY ACQUIRED 
              INFORMATION, AND CONGRESSIONAL REPORTING.

    (a) Minimization Procedures.--The Attorney General shall establish 
minimization and destruction procedures to ensure that information 
obtained pursuant to a national security letter regarding persons that 
are no longer of interest in an authorized investigation is destroyed. 
Such procedures shall be transmitted to the Permanent Select Committee 
on Intelligence and the Committee on the Judiciary of the House of 
Representatives and the Select Committee on Intelligence and the 
Committee on the Judiciary of the Senate in unclassified format within 
3 months of passage, and shall include--
            (1) specific procedures, that are reasonably designed in 
        light of the purpose and technique of the particular 
        surveillance, to minimize the acquisition and retention, and 
        prohibit the dissemination, of nonpublicly available 
        information concerning unconsenting United States persons 
        consistent with the need of the United States to obtain, 
        produce, and disseminate foreign intelligence information;
            (2) procedures that provide for the destruction of 
        information relating to United States persons that do not 
        reflect activity that would lead a reasonable agent or analyst 
        to believe that the person is an agent of a foreign power as 
        defined in 50 U.S.C. 1801(b);
            (3) procedures for identifying whether the information 
        returned in response to a national security letter exceeds the 
        scope of the original request and further procedures for 
        returning or destroying the superfluous information as soon as 
        possible and before it is entered into any database or used in 
        any way; and
            (4) deadlines for destruction, minimization, or return of 
        information described in paragraphs (1) through (3), that 
        require such destruction, minimization, or return as soon as 
        possible.
    (b) Disposal of Wrongly Acquired Information.--Each authority of 
the Government shall have the duty to dispose of all private 
information obtained without legal authority under color of a national 
security letter.
    (c) Report.--The Attorney General shall, semiannually, submit to 
the Permanent Select Committee on Intelligence and the Committee on the 
Judiciary of the House of Representatives and the Select Committee on 
Intelligence and the Committee on the Judiciary of the Senate a 
unclassified report containing--
            (1) the total number of national security letters issued 
        during the preceding six months, in unclassified form;
            (2) for each of the laws authorizing national security 
        letters, the total number of national security letters issued 
        during the preceding six months under the authority of that 
        law;
            (3) for each of the laws authorizing national security 
        letters, the total number of national security letters issued 
        during the preceding six months under the authority of that law 
        for United States persons;
            (4) for each of the laws authorizing national security 
        letters, the total number of national security letters issued 
        during the preceding six months under the authority of each 
        such subparagraph for non-United States persons;
            (5) a description of the minimization procedures adopted by 
        the Attorney General pursuant to subsection (c), including any 
        changes to minimization procedures previously adopted by the 
        Attorney General;
            (6) a summary of the challenges made by recipients of 
        national security letters in court;
            (7) a description of the extent to which information 
        obtained with national security letters has aided 
        investigations and an explanation of how such information has 
        aided such investigations; and
            (8) a description of the extent to which information 
        obtained with national security letters has aided prosecutions 
        and an explanation of how such information has been used in or 
        aided such prosecutions.

SEC. 7. REQUIREMENTS RELATING TO CLAIMS OF EMERGENCY IN CONNECTION WITH 
              CERTAIN NATIONAL SECURITY LETTERS.

    Section 2702 of title 18, United States Code, is amended--
            (1) in subsection (b), so that paragraph (8) reads as 
        follows:
            ``(8) to a governmental entity, if the provider reasonably 
        believes that an emergency involving immediate danger of death 
        or serious physical injury to any person justifies disclosure 
        of the information;'';
            (2) in subsection (c), so that paragraph (4) reads as 
        follows:
            ``(4) to a governmental entity if the provider has a 
        reasonable belief that an emergency involving the imminent 
        danger of death or serious physical injury to any person 
        requires disclosure without delay of information relating to 
        the emergency;''; and
            (3) so that subsection (d) reads as follows:
    ``(d) Reporting of Emergency Disclosures.--On a semiannual basis 
the Attorney General shall submit to the Committee on the Judiciary of 
the House of Representatives and the Committee on the Judiciary of the 
Senate a report containing--
            ``(1) the number of accounts from which the Department of 
        Justice has received voluntary disclosures under subsection 
        (b)(8), and a summary of the factual basis for each emergency 
        disclosure; and
            ``(2) the number and type of communications the Department 
        of Justice has received by voluntary disclosure under 
        subsection (c)(4), and a summary of the factual basis for each 
        emergency disclosure.''.
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