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[House Report 111-382]
[From the U.S. Government Publishing Office]

111th Congress                                            Rept. 111-382
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================

 
                   USA PATRIOT AMENDMENTS ACT OF 2009

                                _______
                                

               December 16, 2009.--Ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3845]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 3845) to extend and modify authorities needed to combat 
terrorism and protect civil liberties, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................    11
Background and Need for the Legislation..........................    11
Hearings.........................................................    21
Committee Consideration..........................................    22
Committee Votes..................................................    22
Committee Oversight Findings.....................................    30
New Budget Authority and Tax Expenditures........................    30
Congressional Budget Office Cost Estimate........................    30
Performance Goals and Objectives.................................    32
Constitutional Authority Statement...............................    32
Advisory on Earmarks.............................................    32
Section-by-Section Analysis......................................    32
Changes in Existing Law Made by the Bill, as Reported............    36
Dissenting Views.................................................    63

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``USA PATRIOT 
Amendments Act of 2009''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.

              TITLE I--USA PATRIOT ACT RELATED AMENDMENTS

Sec. 101. Roving wiretaps.
Sec. 102. Extension of sunset of sections 206 and 215 of USA PATRIOT 
Act.
Sec. 103. Access to certain tangible things under section 501 of the 
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Sunset relating to individual terrorists as agents of foreign 
powers.
Sec. 105. Audits.
Sec. 106. Criminal ``sneak and peek'' searches.
Sec. 107. Orders for pen registers and trap and trace devices for 
foreign intelligence purposes.
Sec. 108. Public reporting on the Foreign Intelligence Surveillance Act 
of 1978.
Sec. 109. Challenges to nationwide orders for electronic evidence.
Sec. 110. Report on civil liberties and privacy protections.

               TITLE II--NATIONAL SECURITY LETTER REFORM

Sec. 201. Short title.
Sec. 202. Sunset.
Sec. 203. National security letter defined.
Sec. 204. Modification of standard.
Sec. 205. Notification of right to judicial review of nondisclosure 
order.
Sec. 206. Disclosure for law enforcement purposes.
Sec. 207. Judicial review of national security letter nondisclosure 
order.
Sec. 208. Minimization.
Sec. 209. Public reporting on National Security Letters.

                     TITLE III--GENERAL PROVISIONS

Sec. 301. Sense of Congress on level of classification of certain 
programs.

              TITLE I--USA PATRIOT ACT RELATED AMENDMENTS

SEC. 101. ROVING WIRETAPS.

    Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act 
of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by striking ``finds, based 
upon specific facts'' and inserting ``finds--
                            ``(i) that the target of the application is 
                        a foreign power, as defined in paragraph (1), 
                        (2), (3), or (6) of section 101(a), an agent of 
                        such a foreign power, or a specific individual; 
                        and
                            ``(ii) based upon specific facts''.

SEC. 102. EXTENSION OF SUNSET OF SECTIONS 206 AND 215 OF USA PATRIOT 
                    ACT.

    Section 102(b)(1) of the USA PATRIOT Improvement and 
Reauthorization Act of 2005 (18 U.S.C. 2510 note) is amended by 
striking ``December 31, 2009'' and inserting ``December 31, 2013''.

SEC. 103. ACCESS TO CERTAIN TANGIBLE THINGS UNDER SECTION 501 OF THE 
                    FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Factual Basis for and Issuance of Orders.--
            (1) In general.--Section 501 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1861) is amended--
                    (A) in the section heading, by striking ``CERTAIN 
                BUSINESS RECORDS'' and inserting ``TANGIBLE THINGS''; 
                and
                    (B) in subsection (b)(2)(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;''.
            (2) Technical and conforming amendments.--
                    (A) 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 striking 
                ``CERTAIN BUSINESS RECORDS'' and inserting ``TANGIBLE 
                THINGS''.
                    (B) 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 by striking the items relating to title V and 
                section 501 and inserting the following:

 ``TITLE V--ACCESS TO TANGIBLE THINGS FOR FOREIGN INTELLIGENCE PURPOSES

``Sec. 501. Access to tangible things for foreign intelligence and 
international terrorism investigations.''.
    (b) Judicial Review of FISA Orders.--Section 501 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended--
            (1) in subsection (c)(2)--
                    (A) in subparagraph (D) by striking ``things; and'' 
                and inserting ``things;'';
                    (B) in subparagraph (E), by striking ``subsection 
                (a).'' and inserting ``subsection (a); and''; and
                    (C) by adding at the end the following new 
                subparagraph:
                    ``(F) shall direct the applicant to provide notice 
                to each person receiving such order of--
                            ``(i) the right to challenge the legality 
                        of a production order or nondisclosure order by 
                        filing a petition in accordance with subsection 
                        (f); and
                            ``(ii) the procedures to follow to file 
                        such petition in accordance with such 
                        subsection.''; and
            (2) in subsection (f)(2)--
                    (A) in subparagraph (A)--
                            (i) 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;
                            (ii) in clause (ii), by striking 
                        ``production order or nondisclosure''; and
                    (B) in subparagraph (C)--
                            (i) by striking clause (ii); and
                            (ii) by redesignating clause (iii) as 
                        clause (ii).
    (c) Minimization Procedures.--Section 501(g) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is amended--
            (1) by redesignating paragraph (2) as paragraph (3); and
            (2) by inserting after paragraph (1) the following new 
        paragraph:
            ``(2) Compliance assessment.--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 such order, a judge may 
        assess compliance with the minimization procedures required to 
        be followed under such order by reviewing the circumstances 
        under which information concerning United States persons was 
        retained or disseminated.''.
    (d) Requirements for Orders for Certain Records From Libraries.--
Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1861) is amended--
            (1) in subsection (b)(2)--
                    (A) by redesignating subparagraph (B) as 
                subparagraph (C); and
                    (B) by inserting after subparagraph (A) the 
                following new subparagraph:
                    ``(B) if the records sought contain bookseller 
                information, or are from a library (as defined in 
                section 213(1) of the Library Services and Technology 
                Act (20 U.S.C. 9122(1))) and contain personally 
                identifiable information about a patron of such 
                library, a statement of specific and articulable 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 who is the subject of such 
                        authorized investigation; and''; and
            (2) by adding at the end the following new subsection:
    ``(i) Bookseller Information Defined.--In this section, the term 
`bookseller information' means personally identifiable information 
concerning the purchase (including subscription purchases) or rental of 
books, journals, or magazines, whether in print or digitally.''.

SEC. 104. SUNSET RELATING TO INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN 
                    POWERS.

    Section 6001(b) of the Intelligence Reform and Terrorism Prevention 
Act of 2004 (50 U.S.C. 1801 note; Public Law 108-458) is amended--
            (1) in paragraph (1)--
                    (A) by striking ``the amendment made by subsection 
                (a) shall cease to have effect'' and inserting 
                ``effective''; and
                    (B) by striking the period and inserting ``--
                    ``(A) subparagraph (C) of section 101(b)(1) of the 
                Foreign Intelligence Surveillance Act of 1978 (50 
                U.S.C. 1801(b)(1)) is repealed;
                    ``(B) subparagraphs (D) and (E) of such section are 
                redesignated as subparagraphs (C) and (D), 
                respectively;
                    ``(C) paragraph (2) of section 601(a) of such Act 
                (50 U.S.C. 1871(a)) is repealed; and
                    ``(D) paragraphs (3), (4), and (5) of such section 
                are redesignated as paragraphs (2), (3), and (4), 
                respectively.''; and
            (2) in paragraph (2)--
                    (A) by striking ``Exception.--With respect to'' and 
                inserting ``Exception.--
                    ``(A) Existing investigations.--With respect to''; 
                and
                    (B) by adding at the end the following new 
                subparagraph:
                    ``(B) Reports.--Notwithstanding the repeals made by 
                paragraph (1), the first report required under section 
                601(a) of the Foreign Intelligence Surveillance Act of 
                1978 (50 U.S.C. 1871(a)) that is submitted after the 
                effective date of such repeals shall include the number 
                of individuals covered by an order issued pursuant to 
                section 101(b)(1)(C) of such Act (as in effect on the 
                day before such effective date).''.

SEC. 105. 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 ``2013''; and
                    (B) in paragraph (5)(C), by striking ``calendar 
                year 2006'' and inserting ``each of calendar years 2006 
                through 2013'';
            (2) in subsection (c), by adding at the end the following:
            ``(3) Calendar years 2007 through 2009.--Not later than 
        December 31, 2010, 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 this 
        section for calendar years 2007 through 2009.
            ``(4) Calendar years 2010 through 2013.--Not later than 
        December 31, 2011, and annually thereafter until December 31, 
        2014, 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 this 
        section for the preceding calendar year.'';
            (3) in subsection (d)--
                    (A) in paragraph (1), by striking ``or (c)(2)'' and 
                inserting ``, (c)(2), (c)(3), or (c)(4)''; and
                    (B) in paragraph (2), by striking ``and (c)(2)'' 
                and inserting ``, (c)(2), (c)(3), or (c)(4)''; and
            (4) in subsection (e), by striking ``and (c)(2)'' and 
        inserting ``, (c)(2), (c)(3), or (c)(4)''.
    (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)(1), by striking ``2006'' and 
        inserting ``2013'';
            (2) in subsection (c), by adding at the end the following:
            ``(3) Calendar years 2007 through 2009.--Not later than 
        December 31, 2010, 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 this 
        section for calendar years 2007 through 2009.
            ``(4) Calendar years 2010 through 2013.--Not later than 
        December 31, 2011, and annually thereafter until December 31, 
        2014, 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 this 
        section for the previous calendar year.'';
            (3) in subsection (d)--
                    (A) in paragraph (1), by striking ``or (c)(2)'' and 
                inserting ``, (c)(2), (c)(3), or (c)(4)''; and
                    (B) in paragraph (2), by striking ``or (c)(2)'' and 
                inserting ``, (c)(2), (c)(3), or (c)(4)''; and
            (4) in subsection (e), by striking ``or (c)(2)'' and 
        inserting ``, (c)(2), (c)(3), or (c)(4)''.
    (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 by the Federal Government, 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.) and section 3122 of title 18, United 
        States Code, during the period beginning on January 1, 2007 and 
        ending on December 31, 2012.
            (2) Requirements.--The audits required under paragraph (1) 
        shall include--
                    (A) an examination of each instance in which the 
                Attorney General or any other attorney for the 
                Government submitted an application for an order or 
                extension of an order under title IV of the Foreign 
                Intelligence Surveillance Act of 1978, including 
                whether the court granted, modified, or denied the 
                application (including an examination of the basis for 
                any modification or denial);
                    (B) an examination of each instance in which the 
                Attorney General authorized the installation and use of 
                a pen register or trap and trace device on an emergency 
                basis under section 403 of the Foreign Intelligence 
                Surveillance Act of 1978 (50 U.S.C. 1843);
                    (C) whether the Federal Bureau of Investigation 
                requested that the Department of Justice submit an 
                application for an order or extension of an order under 
                title IV of the Foreign Intelligence Surveillance Act 
                of 1978 and the request was not submitted to the court 
                (including an examination of the basis for not 
                submitting the application);
                    (D) whether bureaucratic or procedural impediments 
                to the use of pen registers and trap and trace devices 
                under title IV of the Foreign Intelligence Surveillance 
                Act of 1978 prevent the Federal Bureau of Investigation 
                from taking full advantage of the authorities provided 
                under that title;
                    (E) 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
                    (F) 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 or any other 
                        department or agency of the Federal Government;
                            (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 
                        through 2012, an examination of the 
                        minimization procedures 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 
                        (as defined in section 3(4) of the National 
                        Security Act of 1947 (50 U.S.C. 401a(4))), or 
                        to other Federal, State, local, or tribal 
                        government departments, agencies, or 
                        instrumentalities; 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) Prior years.--Not later than December 31, 2010, 
                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 
                audit conducted under this section for calendar years 
                2007 thorough 2009.
                    (B) Calendar years 2010 through 2013.--Not later 
                than December 31, 2011, and annually thereafter until 
                December 31, 2014, 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 audit conducted under this section for 
                the previous calendar year.
            (4) Prior notice to attorney general and director of 
        national intelligence; comments.--
                    (A) Notice.--Not less than 30 days before the 
                submission of a report under subparagraph (A) or (B) of 
                paragraph (3), the Inspector General of the Department 
                of Justice 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 a report submitted under subparagraph 
                (A) or (B) of paragraph (3) as the Attorney General or 
                the Director of National Intelligence may consider 
                necessary.
            (5) Unclassified form.--A report submitted under 
        subparagraph (A) or (B) of paragraph (3) and any comments 
        included under paragraph (4)(B) shall be in unclassified form, 
        but may include a classified annex.

SEC. 106. CRIMINAL ``SNEAK AND PEEK'' SEARCHES.

    Section 3103a of title 18, United States Code, is amended--
            (1) in subsection (b)--
                    (A) in paragraph (1), by striking ``may have an 
                adverse result (as defined in section 2705, except if 
                the adverse results consist only of unduly delaying a 
                trial)'' and inserting ``may endanger the life or 
                physical safety of an individual, result in flight from 
                prosecution, result in the destruction of or tampering 
                with the evidence sought under the warrant, or result 
                in intimidation of potential witnesses, or is likely to 
                otherwise seriously jeopardize an investigation or 
                unduly delay a trial''; and
                    (B) in paragraph (3), by striking ``30 days'' and 
                all that follows and inserting ``7 days after the date 
                of its execution.''; and
            (2) in subsection (c), by striking ``for good cause shown'' 
        and all that follows and inserting ``upon application of the 
        United States Attorney for the district seeking the delay, for 
        additional periods of not more than 21 days for each 
        application, if the court finds, for each application, 
        reasonable cause to believe that notice of the execution of the 
        warrant may endanger the life or physical safety of an 
        individual, result in flight from prosecution, result in the 
        destruction of or tampering with the evidence sought under the 
        warrant, or result in intimidation of potential witnesses, or 
        is likely to otherwise seriously jeopardize an investigation or 
        unduly delay a trial.''.

SEC. 107. 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 
                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 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)(2)--
                            (i) in subparagraph (C)(i)(VII), by 
                        striking ``; and'' and inserting ``;'';
                            (ii) in subparagraph (C)(ii)(IV), by 
                        striking the period at the end and inserting 
                        ``; and''; and
                            (iii) by adding at the end the following 
                        new subparagraph:
                    ``(D) shall, if the judge finds that there are 
                exceptional circumstances, direct that minimization 
                procedures be followed.''; 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 inserting ``and the minimization procedures under 
        this title, if required'' after ``provisions of this section''.

SEC. 108. PUBLIC REPORTING ON THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 
                    OF 1978.

    Section 601 of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1871) is amended--
            (1) by redesignating subsections (b) through (e) as 
        subsections (c) through (f), respectively;
            (2) by inserting after subsection (a) the following:
    ``(b) Public Report.--The Attorney General shall make publicly 
available the portion of each report under subsection (a) relating to 
paragraph (1) of such subsection.''; and
            (3) in subsection (e), as so redesignated, by striking 
        ``subsection (c)'' and inserting ``subsection (d)''.

SEC. 109. CHALLENGES TO NATIONWIDE ORDERS FOR ELECTRONIC EVIDENCE.

    Section 2703 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(h) Judicial Review.--A provider of electronic communication 
service or remote computing service may challenge a subpoena, order, or 
warrant requiring disclosure of customer communications or records 
under this section in--
            ``(1) the United States district court for the district in 
        which the order was issued; or
            ``(2) the United States district court for the district in 
        which the order was served.''.

SEC. 110. REPORT ON CIVIL LIBERTIES AND PRIVACY PROTECTIONS.

    Not later than 180 days after the date of the enactment of this 
Act, the President 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 describing--
            (1) whether operations conducted pursuant to orders issued 
        under section 501 of the Foreign Intelligence Surveillance Act 
        of 1978 (50 U.S.C. 1861) could be modified in a manner that 
        enhances protections for civil liberties; and
            (2) the nature of any potential modifications, the likely 
        costs of such modifications, any technical challenges, and any 
        potential impact on such operations.

               TITLE II--NATIONAL SECURITY LETTER REFORM

SEC. 201. SHORT TITLE.

    This title may be referred to as the ``National Security Letter 
Reform Act of 2009''.

SEC. 202. SUNSET.

    (a) In General.--Effective on December 31, 2013, the following 
provisions of law are amended to read as such provisions read on 
October 25, 2001:
            (1) Section 2709 of title 18, United States Code.
            (2) Section 1114(a)(5) of the Right to Financial Privacy 
        Act of 1978 (12 U.S.C. 3414(a)(5)).
            (3) Subsections (a) and (b) of section 626 of the Fair 
        Credit Reporting Act (15 U.S.C. 1681u).
            (4) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 
        1681v).
            (5) Section 802 of the National Security Act of 1947 (50 
        U.S.C. 436).
    (b) Transition Provision.--Notwithstanding subsection (a), the 
provisions of law referred to in subsection (a), as in effect on 
December 30, 2013, shall continue to apply 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.

SEC. 203. NATIONAL SECURITY LETTER DEFINED.

    In this title, 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).
            (5) Section 802 of the National Security Act of 1947 (50 
        U.S.C. 436).

SEC. 204. MODIFICATION OF STANDARD.

    (a) In General.--A national security letter may not be issued 
unless the official having authority under law to issue that letter 
documents in a separate writing specific and articulable facts showing 
that there are reasonable grounds to believe that the information 
sought--
            (1) pertains to a foreign power or an agent of a foreign 
        power;
            (2) is relevant to the activities of a suspected agent of a 
        foreign power that is the subject of such authorized 
        investigation; or
            (3) pertains to an individual in contact with, or 
        personally known to, a suspected agent of a foreign power that 
        is the subject of such authorized investigation.
    (b) Maintenance.--The agency under whose authority a national 
security letter is issued shall maintain a copy of a separate writing 
required under subsection (a).
    (c) Definitions.--In this section, the terms ``foreign power'' and 
``agent of a foreign power'' have the meaning given such terms in 
section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801).

SEC. 205. NOTIFICATION OF RIGHT TO JUDICIAL REVIEW OF NONDISCLOSURE 
                    ORDER.

    If a recipient of a national security letter is subject to a 
nondisclosure requirement imposed in connection with that national 
security letter, the official issuing that letter shall, simultaneously 
with its issuance, inform the recipient of the right of the recipient 
to judicial review of that requirement and that the requirement will 
remain in effect during the pendency of any judicial review 
proceedings.

SEC. 206. 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 may only be used in a 
criminal proceeding with the advance authorization of the Attorney 
General, or a designee of the Attorney General at a level not lower 
than Section Chief of a division of the Department of Justice.

SEC. 207. JUDICIAL REVIEW OF NATIONAL SECURITY LETTER NONDISCLOSURE 
                    ORDER.

    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 (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, 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 particular 
                information about 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 any 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 may 
                issue a nondisclosure order for a period of not longer 
                than 180 days.
                    ``(D) Denial.--If a district court of the United 
                States rejects an application for a nondisclosure order 
                or extension thereof, the nondisclosure requirement 
                shall no longer be in effect.
            ``(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, of the existence of a result described in 
        subparagraphs (A) through (D) and 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 may 
        issue a nondisclosure requirement order or extension thereof 
        under this subsection if the court determines that there is 
        reason to believe that disclosure of the information subject to 
        the nondisclosure requirement during the applicable time period 
        will have a result described in paragraph (2).
            ``(4) Renewal.--A nondisclosure order under this subsection 
        may be renewed for additional periods of not longer than 180 
        days each, upon a determination by the court that a result 
        described in paragraph (2) justifies the renewal.
            ``(5) Early termination of nondisclosure order.--A 
        nondisclosure order the Government applied for under paragraph 
        (1)(B) ceases to have effect when the Government discovers that 
        the factual basis for that order has ceased to exist and the 
        Government so informs the order's recipient. The Government 
        upon making such a discovery shall promptly so informs the 
        recipient.''.

SEC. 208. MINIMIZATION.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the Attorney General shall--
            (1) establish minimization procedures governing the 
        acquisition, retention, and dissemination by the Federal Bureau 
        of Investigation of any records received by the Federal Bureau 
        of Investigation in response to a national security letter; and
            (2) 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 copy of the 
        minimization procedures established under paragraph (1).
    (b) Definitions.--In this section--
            (1) the term ``minimization procedures'' means--
                    (A) specific procedures that are reasonably 
                designed in light of the purpose and technique of a 
                national security letter, to minimize the acquisition 
                and retention, and prohibit the dissemination, of 
                nonpublicly available information concerning 
                unconsenting United States persons (as defined in 
                section 101 of the Foreign Intelligence Surveillance 
                Act of 1978 (50 U.S.C. 1801)) 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 (as defined in section 
                101(e)(1) of the Foreign Intelligence Surveillance Act 
                of 1978 (50 U.S.C. 1801(e)(1))) shall not be 
                disseminated in a manner that identifies any United 
                States person, without the consent of the United States 
                person, unless the identity of the United States person 
                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; and
            (2) the term ``national security letter'' means a request 
        for information 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)), subsection (a) or (b) 
        of 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).

SEC. 209. PUBLIC REPORTING ON NATIONAL SECURITY LETTERS.

    Section 118(c) of the USA PATRIOT Improvement and Reauthorization 
Act of 2005 (18 U.S.C. 3511 note) is amended--
            (1) in paragraph (1)--
                    (A) in the matter preceding subparagraph (A), by 
                striking ``concerning different United States 
                persons''; and
                    (B) in subparagraph (A), by striking ``, excluding 
                the number of requests for subscriber information'';
            (2) by redesignating paragraph (2) as paragraph (3); and
            (3) by inserting after paragraph (1) the following:
            ``(2) Content.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), each report required under this 
                subsection shall include the total number of requests 
                described in paragraph (1) requiring disclosure of 
                information concerning--
                            ``(i) United States persons;
                            ``(ii) persons who are not United States 
                        persons;
                            ``(iii) persons who are the subjects of 
                        authorized national security investigations; or
                            ``(iv) persons who are not the subjects of 
                        authorized national security investigations.
                    ``(B) Exception.--With respect to the number of 
                requests for subscriber information under section 2709 
                of title 18, United States Code, a report required 
                under this subsection need not provide information 
                separated into each of the categories described in 
                subparagraph (A).''.

                     TITLE III--GENERAL PROVISIONS

SEC. 301. SENSE OF CONGRESS ON LEVEL OF CLASSIFICATION OF CERTAIN 
                    PROGRAMS.

    It is the sense of Congress that the President should periodically 
review the level of classification of programs that make use of 
national security letters (as defined in section 203 of this Act) or 
the authorities under the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) to determine if such programs can be 
declassified, in whole or in part, without interfering with an ongoing 
investigation or otherwise threatening national security.

                          Purpose and Summary

    H.R. 3845, the ``USA PATRIOT Amendments Act of 2009,'' 
introduced by Chairman Conyers, Mr. Nadler, Mr. Scott, Mr. 
Cohen, Ms. Harman, Ms. Jackson Lee, and Mr. Johnson 
reauthorizes two expiring provisions of the USA PATRIOT Act of 
2001:\1\ section 206, regarding roving wiretaps, and section 
215, regarding orders for tangible things. This bill gives 
these provisions a new sunset date of December 31, 2013. It 
also makes reforms to section 215 authority and to other 
related surveillance and collection authorities, including 
national security letters (NSLs), orders for pen register and 
trap and trace devices for foreign intelligence purposes, and 
criminal ``sneak and peek'' search warrants. Moreover, the bill 
enhances the use of audits and reports dealing with the use and 
efficacy of these investigative authorities. It does not 
reauthorize the ``Lone Wolf'' provision of the Intelligence 
Reform and Terrorism Prevention Act of 2004 (IRTPA),\2\ 
allowing this provision, which has never been used, to sunset 
on December 31, 2009. These modifications and reforms seek to 
ensure that the government can conduct efficient, thorough, and 
effective national security investigations in a manner that 
also appropriately protects privacy and civil liberties.
---------------------------------------------------------------------------
    \1\Pub. L. 107-56.
    \2\Pub. L. 108-458.
---------------------------------------------------------------------------

                Background and Need for the Legislation

            INTELLIGENCE COLLECTION TOOLS SET TO EXPIRE ON 
                           DECEMBER 31, 2009

Section 206--Roving Wiretaps
    Section 206 of the USA PATRIOT Act\3\ amended the Foreign 
Intelligence Surveillance Act\4\ (FISA) to allow for multipoint 
or ``roving'' wiretaps, which permit the government to include 
multiple surveillance sites associated with a facility 
authorized in an order of the Foreign Intelligence Surveillance 
Court (FISC) if it can show that the target was taking steps to 
thwart surveillance. FISA roving authority allows the 
government to follow a target that switches communication 
facilities without having to return to court and obtain a new 
order, thus avoiding the risk of losing valuable foreign 
intelligence information during the time required to obtain and 
serve a new court order.
---------------------------------------------------------------------------
    \3\Pub. L. 107-56, Sec. 206, codified at 50 U.S.C. 
Sec. 1805(c)(2)(B) (2008).
    \4\Pub. L. 95-511.
---------------------------------------------------------------------------
    Before the enactment of section 206, the scope of 
electronic surveillance authorized by a FISC order was limited 
in two ways. First, the location that was the subject of 
surveillance had to be identified.\5\ Second, only specifically 
identified third parties could be directed to facilitate 
electronic surveillance by the government.\6\ In cases where 
the location was unknown, the identity of the person who would 
need to assist the government could not be specified in the 
order.\7\ Limiting the class of persons who could be directed 
to assist the government by a FISC order effectively limited 
the reach of FISC orders to known and identifiable 
locations.\8\
---------------------------------------------------------------------------
    \5\See 50 U.S.C. Sec. 1805(c)(1)(B) (2001) (requiring FISA warrants 
to specify the ``nature and location of each of the facilities or 
places at which electronic surveillance will be directed'').
    \6\See 50 U.S.C. Sec. 1805(c)(2)(B) (2001).
    \7\Liu, Amendments to the Foreign Intelligence Surveillance Act Set 
to Expire in 2009, CRS Report for Congress, March 16, 2009, at 4 
(R40138).
    \8\Id.
---------------------------------------------------------------------------
    Section 206 of the USA PATRIOT Act amended Section 
105(c)(2)(B) of FISA to provide that ``in circumstances where 
the Court finds, based on specific facts provided in the 
application, that the actions of the target of the application 
may have the effect of thwarting the identification of a 
specified person,'' a FISA order may direct ``other persons'' 
to assist with the electronic surveillance.\9\ In a subsequent 
technical amendment, the requirement that the order specify the 
location of the surveillance was also changed, so that it only 
applied if the facilities or places were known.\10\ These 
modifications had the effect of allowing FISA orders to direct 
unspecified individuals to assist the government in performing 
electronic surveillance, thus permitting court orders to 
authorize surveillance of places or locations that were unknown 
at the time the order was issued.\11\ From a practical 
standpoint, if the government first establishes that the target 
of electronic surveillance is a foreign power or agent of a 
foreign power who is continually switching cell phones in order 
to thwart surveillance, a roving FISA order allows the 
government to ``follow'' and intercept the target on each new 
cell phone number being used, without having to return to court 
for a new order directing new individuals to assist the 
government in performing the surveillance.
---------------------------------------------------------------------------
    \9\50 U.S.C. Sec. 1805(c)(2)(B) (2008).
    \10\Pub. L. 107-108, Sec. 314(a)(2)(A).
    \11\Liu, Amendments to the Foreign Intelligence Surveillance Act 
Set to Expire in 2009, CRS Report for Congress, March 16, 2009, at 5 
(R40138).
---------------------------------------------------------------------------
    The USA PATRIOT Improvement and Reauthorization Act of 2005 
further amended section 206 to require that the FISC be 
notified within 10 days after ``surveillance begins to be 
directed at any new facility or place.''\12\ Moreover, the FISC 
must be informed of the nature and location of each new 
facility or place, the facts and circumstances relied upon to 
justify the new surveillance, a statement of any proposed 
minimization procedures that differ from those contained in the 
original application or order, and the total number of 
facilities or places subject to surveillance under the 
authority of the present order.\13\
---------------------------------------------------------------------------
    \12\50 U.S.C. Sec. 1805(c)(3) (2008). This deadline for 
notification can be extended to up to 60 days by the FISC upon a 
showing of good cause.
    \13\Id.
---------------------------------------------------------------------------
    Notwithstanding the additional roving wiretap notification 
requirements imposed on the government by the USA PATRIOT 
Improvement and Reauthorization Act of 2005, various experts 
have raised concerns that FISA roving authority--specifically 
in the situation where the government only provides a 
description (not the actual identity) of a target, and does not 
identify all of the facilities or places at which electronic 
surveillance is directed--increases the prospect that the 
government may intercept communications between individuals who 
are not FISA targets. In other words, if the government's 
warrant application need not provide either the actual identity 
of a target or all of the places and facilities where it will 
surveil, then the government could end up surveiling multiple 
unrelated people at multiple places who merely fit the target's 
description. This potential exists, according to Suzanne 
Spaulding, former Democratic Staff Director for the U.S. House 
of Representatives Permanent Select Committee on Intelligence 
and an Assistant General Counsel at the CIA, because of what 
she describes generally as ``less rigorous'' statutory 
standards for FISA roving warrants than those governing 
issuance of roving wiretap warrants in criminal investigations 
under Title III of the Omnibus Crime Control and Safe Streets 
Act of 1968, as amended by the Electronic Communications 
Privacy Act of 1986.\14\
---------------------------------------------------------------------------
    \14\Pub. L. 99-508 Sec. 106(d)(3), codified at 18 U.S.C. 2518(11) 
(2008).
---------------------------------------------------------------------------
    For example, FISA permits the government to provide ``a 
description of the target'' if the identity is not known, where 
Title III roving applications must definitively identify the 
target of surveillance.\15\ Moreover, Title III explicitly 
limits an order authorizing or approving ``roving'' 
interceptions to ``such time as it is reasonable to presume'' 
that the person identified in the application is ``reasonably 
proximate'' to the communication instrument. Title III also 
differs from FISA roving authority by requiring that the target 
be notified of surveillance, generally 90 days after the 
surveillance ends.\16\ While such notification is 
understandably absent in the FISA context, this requirement and 
other explicit Title III roving elements not present in FISA 
roving authority reduce the likelihood that communications 
between unrelated persons would be intercepted.\17\ Ms. 
Spaulding, former representative Tom Evans (R-DE), and Mike 
German, Policy Counsel for the American Civil Liberties Union 
and former FBI Agent, all witnesses at the September 22, 2009, 
Subcommittee hearing on the USA PATRIOT Act, urged this 
Committee to consider ``tightening'' statutory language, so as 
to require a FISA judge to determine that the target has been 
described with sufficient particularity to distinguish the 
target from other potential users of the instrument or facility 
being surveilled.\18\
---------------------------------------------------------------------------
    \15\Hearing on the USA PATRIOT Act before the House Judiciary 
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th 
Cong. (2009) (written statement of Suzanne Spaulding).
    \16\Id.
    \17\Id.
    \18\Hearing on the USA PATRIOT Act before the House Judiciary 
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th 
Cong. (2009) (written statements of Suzanne Spaulding, former Rep. Tom 
Evans, and Mike German).
---------------------------------------------------------------------------
    The Committee added language to section 105(c)(2)(B), the 
FISA roving wiretap provision (50 U.S.C. Sec. 1805(c)(2)(B)), 
to clarify Congressional intent that the government must 
describe its roving target with a sufficient degree of 
particularity to allow a judge to be able to distinguish the 
target from other potential users of places or facilities to be 
surveilled. This language is not intended to change current 
practice. With these modifications, section 206 is reauthorized 
until December 31, 2013.
Section 6001(a) of IRTPA--Lone Wolf
    Commonly referred to as the ``Lone Wolf'' provision, 
Sec. 6001(a) of the Intelligence Reform and Terrorism 
Protection Act (IRTPA), broadened the definition of individuals 
who could be FISA targets. It permitted surveillance of non-
U.S. persons preparing to engage in or engaging in 
international terrorism, without requiring evidence linking 
those persons to an identifiable foreign power or terrorist 
organization.\19\ This provision was created in response to the 
FBI's attempt to obtain a FISA order to search the laptop of 
Zacarias Moussaoui in October, 2001. The FBI believed it had 
insufficient information to demonstrate that Moussaoui was an 
agent of a foreign power, as required by FISA at the time, 
although the term ``foreign power'' included international 
terrorist groups.\20\ The FISA Amendments Act of 2008 further 
expanded the definition of ``Lone Wolf'' to include any non-
United States person who engages in or prepares to engage in 
the international proliferation of weapons of mass destruction, 
without requiring evidence linking those persons to an 
identifiable foreign power or terrorist organization.\21\
---------------------------------------------------------------------------
    \19\Pub. L. 108-458 Sec. 6001(a).
    \20\Liu, ``Amendments to the Foreign Intelligence Surveillance Act 
Set to Expire in 2009,'' CRS Report for Congress, March 16, 2009 at 3 
(R40138).
    \21\Pub. L. 110-261 Sec. 110.
---------------------------------------------------------------------------
    Critics of the Lone Wolf provision argue that it undermines 
the constitutional justification for the entire FISA statute: 
that the extraordinary FISA powers used by our government are 
constitutional only because they are used against our most 
serious adversaries, foreign governments and organized foreign 
powers. Accordingly, these critics assert that expanding the 
reach of the statute to individuals acting alone puts the whole 
FISA statute at risk.\22\ Moreover, critics argue Lone Wolf can 
safely be allowed to expire, because a traditional Title III 
warrant can be obtained against any individual who fits the 
definition of Lone Wolf.\23\ Indeed, Title III warrants must be 
used to investigate equally dangerous domestic terrorists, as 
Lone Wolf does not apply to United States persons.
---------------------------------------------------------------------------
    \22\Hearing on the USA PATRIOT Act before the House Judiciary 
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th 
Cong. (2009) (written statement of Suzanne Spaulding).
    \23\Id.
---------------------------------------------------------------------------
    Todd Hinnen, Deputy Assistant Attorney General for the 
Justice Department's National Security Division, testified in a 
hearing before the Subcommittee on the Constitution, Civil 
Rights, and Civil Liberties that the Lone Wolf provision has 
never been used.\24\ This admission further demonstrates that 
Lone Wolf is not so essential that the inherent compromise of 
civil liberties it represents should be allowed to persist in 
American law. The bill, therefore, does not reauthorize Lone 
Wolf.
---------------------------------------------------------------------------
    \24\Id. (testimony of Todd Hinnen).
---------------------------------------------------------------------------
Section 215 Orders--Tangible Evidence Procurement
    Section 215 of the USA PATRIOT Act allows the government to 
obtain a FISA order requiring private parties to produce 
``tangible things'' such as business records that are relevant 
to foreign intelligence, counterterrorism, or 
counterintelligence investigations.\25\ To issue such an order, 
the FISA judge or appropriately designated magistrate judge\26\ 
need only find that the FBI has made ``a statement of facts 
showing that there are reasonable grounds to believe that the 
tangible things sought are relevant to an authorized 
investigation . . . to obtain foreign intelligence information 
not concerning a United States person or to protect against 
international terrorism or clandestine intelligence activities, 
provided that such investigation of a United States person is 
not conducted solely upon the basis of activities protected by 
the First Amendment.''\27\ Upon such finding, the order must 
issue.\28\ Such orders may not disclose their purpose,\29\ 
however, and those receiving them may not disclose their 
existence.\30\ This last provision is often referred to as a 
``gag rule.''
---------------------------------------------------------------------------
    \25\50 U.S.C. Sec. 1861(a)(1). Section 1861 is titled, ``Access to 
certain business records for foreign intelligence and international 
terrorism investigations,'' suggesting that the ``tangible things'' it 
describes may only be of the business sort. However, titles of statutes 
(or their subsections) are traditionally of weak interpretive value to 
courts.
    \26\United States Magistrate Judges (under chapter 43 of title 28) 
can be publicly designated by the Chief Justice of the United States to 
have the power hear applications and grant orders for the production of 
tangible things. See 50 U.S.C. Sec. 1861(b)(1)(B).
    \27\50 U.S.C. Sec. 1861(b)(2)(A).
    \28\50 U.S.C. Sec. 1861(c)(1) (``[I]f the judge finds that the 
application meets the requirements of subsections (a) and (b) of this 
section, the judge shall enter an ex parte order as requested, or as 
modified, approving the release of tangible things.'' (emphasis 
added)).
    \29\50 U.S.C. Sec. 1861(c)(2)(E).
    \30\50 U.S.C. Sec. 1861(d).
---------------------------------------------------------------------------
    In support of reauthorization of section 215, the 
Department of Justice has represented that, based on its 
operational experience, there will continue to be instances in 
which FBI investigators need to obtain transactional 
information that does not fall within the scope of authorities 
relating to NSLs, and where they must operate in an environment 
that precludes the use of less secure criminal authorities.\31\ 
DOJ further indicates that for the period 2004-2007, the FISC 
issued about 220 orders to produce business records.\32\ Of 
these, 173 orders were issued in 2004-2006 in combination with 
FISA pen register orders to address an anomaly in the statutory 
language that prevented the acquisition of subscriber 
information ordinarily associated with pen register 
information.\33\ Congress corrected this deficiency in the pen 
register provision in 2006 in the USA PATRIOT Improvement and 
Reauthorization Act, making this use of business records 
authority unnecessary.\34\ The remaining business records 
orders issued between 2004 and 2007 were used to obtain 
transactional information that did not fall within the scope of 
any other national security investigative authority (such as an 
NSL).\35\ Some of these orders were used to support sensitive 
intelligence collections.\36\
---------------------------------------------------------------------------
    \31\Department of Justice letter to the Honorable Patrick J. Leahy 
(September 14, 2009).
    \32\Id.
    \33\Id.
    \34\Id.
    \35\Id.
    \36\Id.
---------------------------------------------------------------------------
    In 1998, Congress first amended FISA to provide access to 
certain records that were not available through NSLs. 
Specifically, new section 501 created a mechanism for Federal 
investigators to compel the production of records from common 
carriers, public accommodation facilities, storage facilities, 
and vehicle rental facilities.\37\ The FISC would issue an 
order if, among other things, the application contained 
``specific and articulable facts giving reason to believe that 
the person to whom the records pertain is a foreign power or an 
agent of a foreign power.''\38\
---------------------------------------------------------------------------
    \37\50 U.S.C. Sec. 1861(a) (2001).
    \38\50 U.S.C. Sec. 1861(b)(2)(B) (2001).
---------------------------------------------------------------------------
    In 2001, section 215 of the USA PATRIOT Act made several 
changes to the procedures under section 501 of FISA for 
obtaining business records.\39\ Prior to enactment of the USA 
PATRIOT Act, only records from four specific categories of 
businesses could be obtained. Section 215 expanded the scope to 
``any tangible things.''\40\
---------------------------------------------------------------------------
    \39\Pub. L. 107-56, codified at 50 U.S.C. Sec. 1862(a)-(b) (2008).
    \40\50 U.S.C. Sec. 1861(a)(1) (2008).
---------------------------------------------------------------------------
    The expanded scope produced strong opposition from the 
library community, to the degree that section 215 came to be 
known by some as the ``library provision.'' The opposition 
stemmed mainly from the chilling effect such access could have 
on the exercise of First Amendment rights and purported 
intrusions into areas protected by the Fourth Amendment.\41\ In 
response to these concerns, the USA PATRIOT Improvement and 
Reauthorization Act of 2005 added a requirement that the 
application for a section 215 order has to be approved by the 
FBI Director, Deputy Director, or Executive Assistant Director 
for National Security, if the application seeks ``library 
circulation records, library patron lists, book sales records, 
book customer lists, firearms sales records, tax return 
records, educational records, or medical records containing 
information that would identify a person.''\42\
---------------------------------------------------------------------------
    \41\Liu, ``Amendments to the Foreign Intelligence Surveillance Act 
Set to Expire in 2009,'' CRS Report for Congress, March 16, 2009, at 8 
(R40138).
    \42\50 U.S.C. Sec. 1861(a)(3) (2008).
---------------------------------------------------------------------------
    Section 215 of the USA PATRIOT Act also modified the 
standard for issuance of a ``tangible things'' order. Prior to 
the enactment of section 215, the government had to make a 
showing of ``specific and articulable facts giving reasons to 
believe that the person to whom the records pertain[ed] is a 
foreign power or an agent of a foreign power.''\43\ Under 
section 215 as originally enacted in the USA PATRIOT Act, by 
contrast, the applicant only needed to ``specify that the 
records concerned [were] sought for an authorized [foreign 
intelligence, counterterrorism, or counterintelligence] 
investigation.''\44\ In 2005, Congress further amended section 
215 to require ``a statement of facts showing that there are 
reasonable grounds to believe that the tangible things sought 
are relevant to an authorized [foreign intelligence, 
counterterrorism, or counterintelligence] investigation.''\45\ 
Records are presumptively relevant if they pertain to (1) a 
foreign power or agent of a foreign power; (2) the activities 
of a suspected agent of a foreign power who is the subject of 
such authorized investigation; or (3) an individual in contact 
with, or known to, a suspected agent of a foreign power who is 
the subject of such authorized investigation.\46\
---------------------------------------------------------------------------
    \43\50 U.S.C. Sec. 1861(b)(2)(B) (2001).
    \44\Pub. L. 107-56 Sec. 215.
    \45\Pub. L. 109-177 Sec. 106(b).
    \46\Id.
---------------------------------------------------------------------------
    Orders issued under section 215 are accompanied by 
automatic nondisclosure orders, or gag orders, prohibiting the 
recipients from disclosing that the FBI has sought or obtained 
tangible things pursuant to a FISA order. The recipient may 
only discuss the order with other persons as necessary to 
comply with the order, with an attorney to obtain legal advice 
or assistance, or with other persons the FBI permits.\47\
---------------------------------------------------------------------------
    \47\50 U.S.C. Sec. 1861(d)(1) (2008).
---------------------------------------------------------------------------
    In addition to modifying the standard for issuance, The USA 
PATRIOT Improvement and Reauthorization Act of 2005 provided 
procedures for recipients of section 215 orders to obtain 
judicial review of orders compelling the production of business 
records.\48\ Once a petition for review is submitted by a 
recipient, a FISA judge must determine within 72 hours whether 
the petition is frivolous.\49\ If the petition is frivolous, it 
must be denied and the order affirmed.\50\ The order may be 
modified or set aside if it does not meet the requirements of 
FISA or is otherwise unlawful.\51\ Appeals by either party may 
be heard by the Foreign Intelligence Court of Review and the 
Supreme Court.\52\
---------------------------------------------------------------------------
    \48\50 U.S.C. Sec. 1861(f)(2)(A)(i) (2008).
    \49\50 U.S.C. Sec. 1861(f)(2)(A)(ii) (2008).
    \50\Id.
    \51\50 U.S.C. Sec. 1861(f)(2)(B) (2008).
    \52\50 U.S.C. Sec. 1861(f)(3) (2008).
---------------------------------------------------------------------------
    A recipient must wait 1 year from the date of the section 
215 production order to appeal an associated nondisclosure or 
``gag'' order.\53\ However, if a high level government official 
(to include the Attorney General, the Deputy Attorney General, 
an Assistant Attorney General or the Director of the FBI) 
certifies that disclosure may endanger the national security of 
the United States, such certification is treated as conclusive, 
thus automatically defeating the recipient's challenge, unless 
a judge finds that the certification was made in bad faith.\54\
---------------------------------------------------------------------------
    \53\50 U.S.C. Sec. 1861(f)(2)(A)(i) (2008).
    \54\50 U.S.C. Sec. 1861(f)(2)(C)(ii) (2008).
---------------------------------------------------------------------------
    As the law has evolved from the requirement that the 
government demonstrate ``specific and articulable facts giving 
reason to believe that the person to whom the records pertain 
is a foreign power or an agent of a foreign power'' to the more 
permissive standard requiring only ``relevance to an authorized 
investigation,'' and as section 215 has broadened the scope of 
section 501 of FISA from records of four specific types of 
businesses to an ability to acquire ``any tangible thing,'' 
this Committee has reconsidered the appropriateness of such an 
expansive collection tool. This collection authority, for 
example, currently allows the government to acquire lists of 
what library patrons are reading merely by showing relevance to 
an authorized investigation. We have heard from experts who 
caution that while such broad language may sometimes be 
appropriate for the wide-ranging nature of intelligence 
collection, it provides greater opportunity for abuses and 
mistakes.\55\ Moreover, because section 215 orders come with 
compulsory nondisclosure or ``gag orders,'' such abuses are not 
easily discovered.
---------------------------------------------------------------------------
    \55\Hearing on the USA PATRIOT Act before the House Judiciary 
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th 
Cong. (2009) (written statement of Suzanne Spaulding).
---------------------------------------------------------------------------
    These concerns must be evaluated, however, with the 
understanding that, unlike the government's use of NSLs, which 
requires no court order, the government obtains a section 215 
order from a court. Recognizing the inherent protections 
provided by court review, the Committee amends the law to 
require the government to provide a statement of facts and 
circumstances relied upon by the applicant to justify the 
applicant's belief that the tangible things sought are relevant 
to the authorized investigation. This modification will 
strengthen judicial oversight by ensuring that the government 
is presenting a thorough statement of facts for review. The 
bill further strengthens judicial oversight by eliminating the 
``conclusive certification'' by a high-level government 
official that automatically defeats a challenge to a section 
215 gag order. The bill also permits these gag orders to be 
challenged immediately, removing the 1-year delay under current 
law. Additional oversight of section 215 is facilitated though 
DOJ Inspector General reports mandated by the bill, and a new 
sunset date of December 31, 2013.
    The Committee has particular civil liberties concerns with 
a such a broad collection standard as it applies to personally 
identifiable information concerning the use of libraries and 
purchases from booksellers. Indeed, core First Amendment 
activities such as reading require careful protection from 
government intrusion. The Committee has seen no evidence that 
such a broad standard to permit general collection of 
information about whatever people are reading is warranted.
    At the same time, the Committee recognizes that there may 
be specific factual circumstances in a particular investigation 
where it could be necessary for the government to obtain access 
to such records. To avoid prohibiting access where justified by 
a specific, particularized need, the bill amends the law to 
allow access if the government can meet a heightened standard 
of ``specific and articulable facts'' showing that there are 
reasonable grounds to believe that the records sought are 
``relevant to an authorized investigation . . . to obtain 
foreign intelligence information not concerning a United States 
person or to protect against international terrorism or 
clandestine intelligence activities'' and ``(I) pertain to a 
foreign power or 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 who is the subject of such authorized 
investigation.''
    The Committee also recognizes that some ``mixed purchase'' 
records may contain information that falls both inside and 
outside of the heightened standard pertaining to libraries or 
bookseller information. For example, a single purchase at a 
modern superstore may include books and journals, as well as 
bomb-making materials. The Committee does not intend for the 
heightened library/bookseller information standard to apply to 
information that would otherwise be governed by the general 
section 215 ``tangible things'' standard merely because such 
information happens to be co-mingled with library/bookseller 
information in the same records.
    As previously indicated, section 215 orders are used to 
support sensitive collections. In an effort to ensure that 
appropriate consideration is given to civil liberties 
protections with respect to these intelligence collections, the 
bill calls for the President to report to Congress on whether 
the procedures for these collections could be further modified 
so as to enhance civil liberties protections without 
undermining national security objectives.
    With these modifications, the bill reauthorizes section 215 
with a new sunset date of December 31, 2013.

                    NATIONAL SECURITY LETTER REFORM

    National security letters (NSLs) are written directives for 
information issued by the FBI in national security 
investigations to third-party companies such as telephone 
companies, financial institutions, Internet service providers, 
and consumer credit agencies, without judicial review. Unlike 
section 215 ``tangible things'' orders, the FBI issues NSLs 
without any judicial authorization or review. Over the last 20 
years, Congress has enacted a series of laws authorizing the 
FBI to use NSLs to obtain information in terrorism, espionage, 
and classified information leak investigations without 
obtaining warrants from the Foreign Intelligence Surveillance 
Court or approval from another court.
    There are five provisions of law that authorize the FBI to 
issue five types of NSLs: (1) the Right to Financial Privacy 
Act (RFPA) (to obtain financial institution customer 
records);\56\ (2) the Electronic Communications Privacy Act 
(ECPA) (to obtain certain communication service provider 
records);\57\ (3) the Fair Credit Reporting Act (FCRA) (to 
obtain certain financial information records );\58\ (4) FCRA 
(to obtain credit agency consumer records for counterterrorism 
investigations);\59\ and (5) the National Security Act (NSA) 
(to obtain financial information, records, and consumer 
reports).\60\ Companies receiving NSLs are usually prohibited, 
based on ``gag'' orders that accompany such NSLs, from 
disclosing publically the fact or nature of a request.
---------------------------------------------------------------------------
    \56\Section 1114(a)(5)(A),12 U.S.C. 3414(a)(5)(A).
    \57\18 U.S.C. Sec. 2709(a).
    \58\Section 626, 15 U.S.C. 1681u.
    \59\Section 627, 15 U.S.C. 1681v.
    \60\Section 802, 50 U.S.C. 436.
---------------------------------------------------------------------------
    Prior to the enactment of the USA PATRIOT Act, the standard 
for issuing an NSL required that the information sought was 
relevant to an authorized counterterrorism or 
counterintelligence investigation and that there were specific 
and articulable facts giving reason to believe that the 
information sought pertained to a foreign power or agent of a 
foreign power. The USA PATRIOT Act modified that standard to 
require only that the records be relevant to an authorized 
counterterrorism or counterintelligence investigation--provided 
that such investigation of a United States person is not 
conducted solely on the basis of activities protected by the 
First Amendment to the Constitution.
    With the relaxing of the NSL standard to simple 
``relevance'' to an authorized investigation, civil liberties 
and privacy experts maintain that NSLs allow the government to 
access, far too readily, personal information about people who 
are not known or even suspected to have done anything 
wrong.\61\ Moreover, while the USA PATRIOT Improvement and 
Reauthorization Act of 2005 allowed NSL recipients to consult a 
lawyer, NSLs and related gag orders remain free from any 
meaningful judicial review.\62\ Indeed, the Second Circuit, in 
Doe v. Mukasey, 549 F.3d 861 (2008), found various 
constitutional defects in nondisclosure orders pertaining to 
NSLs.
---------------------------------------------------------------------------
    \61\Hearing on the USA PATRIOT Act before the House Judiciary S. 
Comm. on the Constitution, Civil Rights, and Civil Liberties, 111th 
Cong. (2009) (written statement of Mike German on behalf of the 
American Civil Liberties Union).
    \62\Id.
---------------------------------------------------------------------------
    Critics of NSLs also argue that the broad USA PATRIOT Act 
standard for issuance invites potential abuse, an argument 
bolstered by reports from DOJ's Office of the Inspector General 
(OIG). The 2007 and 2008 OIG Reports regarding the FBI's use of 
NSLs revealed abuses including: (1) gathering irrelevant 
private information about individuals and uploading and 
indefinitely retaining it in FBI databases; (2) inaccurate 
reporting to Congress regarding the number and use of NSLs; (3) 
issuing NSLs without proper authorization and outside statutory 
and regulatory requirements; and (4) widespread abuse in the 
use of so-called ``exigent letters''--``emergency'' requests 
for telephone and other data--in non-emergencies, without even 
a pending investigation, as a means to bypass normal NSL 
procedures.\63\
---------------------------------------------------------------------------
    \63\See generally Dep't of Justice, Ofc. of Inspector General, A 
Review of the Federal Bureau of Investigation's Use of National 
Security Letters, available at http://www.npr.org/documents/2007/mar/
doj/doj_oig_nsl.pdf (March 2007).
---------------------------------------------------------------------------
    OIG also found one instance in which the FBI had issued 
NSLs for information after the FISC had refused to issue 
section 215 orders for the same information, citing First 
Amendment concerns.\64\ OIG ``questioned the appropriateness'' 
of the FBI's issuing these NSLs after the court's decision, 
because NSLs have the same First Amendment caveat as Section 
215 requests and the FBI issued the NSLs based on the same 
factual predicate.\65\ The FBI issued the NSLs without further 
review of the underlying investigation to ensure that it was 
not premised solely on protected First Amendment conduct.\66\
---------------------------------------------------------------------------
    \64\Written Statement of Glenn Fine, Inspector General, Dep't of 
Justice, Hearing on ``The FBI's Use of National Security Letters and 
Section 215 Orders for Business Records,'' before the Subcommittee on 
Constitution, Civil Rights, and Civil Liberties, April 15, 2008.
    \65\Id.
    \66\Id.
---------------------------------------------------------------------------
    In testimony before the Constitution Subcommittee hearing 
on the USA PATRIOT Act this September, ACLU Policy Counsel Mike 
German and former Representative Tom Evans urged the Committee 
to: (1) change the issuance standard for NSLs to ensure that 
the government is seeking information on the appropriate 
individuals; and (2) address concerns regarding NSL gag orders, 
and provide meaningful judicial review of both NSLs and 
associated gag orders.\67\
---------------------------------------------------------------------------
    \67\Hearing on the USA PATRIOT Act before the House Judiciary 
Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 111th 
Cong. (2009) (written statements of Mike German and former Rep. Tom 
Evans).
---------------------------------------------------------------------------
    The Committee has examined these concerns and balanced them 
against the government's need to acquire basic ``building 
block'' information in national security investigations in an 
efficient manner. Because the government can issue NSLs without 
obtaining court authorization, it is appropriate to tie the NSL 
issuance standard more closely to information pertaining to a 
foreign power or agent of a foreign power--terms that are well-
defined in the law. The bill therefore requires the government 
to produce and retain, prior to the issuance of an NSL, a 
statement of ``specific and articulable'' facts documenting how 
the information sought is relevant to an authorized 
counterterrorism or counterintelligence investigation and: (1) 
pertains to a foreign power or agent of a foreign power; (2) is 
relevant to the activities of a suspected agent of a foreign 
power or agent of a foreign power that is the subject of such 
authorized investigation; or (3) pertains to an individual in 
contact with, or personally known to, a suspected agent of a 
foreign power that is the subject of such authorized 
investigation.
    The bill also corrects constitutional defects in the 
issuance of NSL nondisclosure orders identified by the Second 
Circuit in Doe v. Mukasey, and adopts procedures suggested by 
the court for a constitutionally sound process. These 
procedures include: (1) requiring the government to notify the 
recipient of a right to judicial review of a nondisclosure 
order at the time the government serves the NSL on the 
recipient; (2) requiring the government to seek a court order 
prohibiting disclosure within thirty (30) days of being 
notified by the recipient that the recipient wants a court to 
review the nondisclosure requirement associated with the NSL; 
and (3) requiring the government to seek court renewals of 
nondisclosure orders every 180 days (or less where justified by 
the timeframe established by the court's order). Moreover, the 
bill eliminates the ``conclusive certifications'' that 
previously allowed certain high-level government officials to 
make national security-related certifications that, unless made 
in bad faith, would automatically defeat a challenge to a 
nondisclosure order.

           OVERSIGHT, CIVIL LIBERTIES AND PRIVACY PROTECTIONS

    In an effort to enhance civil liberties and privacy 
protections, this Committee examined ways to increase Judicial, 
Legislative, and Executive Branch oversight in relation to 
collection and surveillance authorities, and to require 
increased public reporting of the use of these authorities in a 
manner that will not otherwise threaten national security. 
Section 301 of the bill expresses a sense of Congress that the 
President should periodically review the level of 
classification of programs that make use of NSLs or FISA 
authorities, to determine if such programs can be declassified, 
in whole or in part, without interfering with ongoing 
investigations or otherwise threatening national security. 
Sections 108 and 209 of the bill require public reporting 
pertaining to FISA and NSLs.
    Substantively, for the first time in statute, the bill 
addresses the need, in appropriate circumstances, for 
minimization procedures pertaining to information acquired from 
NSLs and FISA pen register and trap-and-trace devices. The bill 
also strengthens judicial oversight of FISA pen/trap and 
section 215 ``tangible things'' orders, by underscoring a FISA 
judge's authority to review compliance with minimization 
procedures. Moreover, under section 107 of the bill, in order 
to obtain an order authorizing the use of a FISA pen/trap, the 
government would now provide a statement of facts justifying 
the applicant's belief that the information likely to be 
obtained is relevant, rather than merely certifying such 
relevance. The bill also strengthens judicial oversight of 
criminal ``sneak and peek'' warrants by shortening the periods 
of time for which the government can delay notice of a search 
before having to go back to the court for continued 
authorization of the delay of notice.

                                Hearings

    The Committee's Subcommittee on Constitution, Civil Rights, 
and Civil Liberties held a hearing on the USA PATRIOT Act on 
September 22, 2009. Witnesses at the hearing included Todd 
Hinnen, Deputy Assistant Attorney General, National Security 
Division; Suzanne Spalding, Principal, Bingham Consulting 
Group, and former Democratic Staff Director, U.S. House 
Permanent Select Committee on Intelligence; Mike German, Policy 
Counsel, ACLU and former FBI Agent; Thomas B. Evans, Jr., 
Chairman, The Evans Group, Ltd. and former Member of Congress 
(R-DE); and Kenneth Wainstein, Partner, O'Melveny & Myers, LLP 
and former Assistant Attorney General, National Security 
Division.
    On October 29, 2009, the Committee held a classified 
hearing on the USA PATRIOT Act and related matters. Witnesses 
at that hearing included David S. Kris, Assistant Attorney 
General for National Security, Department of Justice and 
Michael E. Leiter, Director, National Counterterrorism Center.
    The were also two hearings held in the 110th Congress. On 
April 15, 2008, the Subcommittee on the Constitution, Civil 
Rights, and Civil Liberties held a hearing on H.R. 3189 
(110th), the ``National Security Letters Reform Act of 2007.'' 
Witnesses included Glenn A. Fine, Inspector General, U.S. 
Department of Justice; Valerie Caproni, General Counsel, 
Federal Bureau of Investigation; Jameel Jaffer, Director, 
National Security Project, American Civil Liberties Union; 
Bruce Fein, Lichfield Group, Inc.; Michael J. Woods, Former 
Chief, FBI National Security Law Unit; and David Kris, Former 
Associate Deputy Attorney General, U.S. Department of Justice.
    On March 20, 2007, the Committee held a hearing on The 
Inspector General's Independent Report on the FBI's Use of 
National Security Letters. Witnesses included Valerie Caproni, 
General Counsel, Office of General Counsel, Federal Bureau of 
Investigation, and Glenn A. Fine, Inspector General, U.S. 
Department of Justice.

                        Committee Consideration

    On November 4 and 5, 2009, the Committee met in open 
session for consideration of H.R. 3485. On November 5, 2009, 
the Committee ordered the bill H.R. 3845 favorably reported 
with amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 3845:
    1. An amendment by Mr. Gallegly (to the manager's amendment 
and the bill) to strike additional section 215 business records 
protections for libraries and bookseller information. Defeated 
21 to 13.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Gutierrez...................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             13              21
----------------------------------------------------------------------------------------------------------------

    2. An amendment by Mr. Lungren (to the manager's amendment 
and the bill) to strike minimization procedures for NSLs. 
Defeated 18 to 8.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Gutierrez...................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................              X
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................              8              18
----------------------------------------------------------------------------------------------------------------

    3. An amendment by Mr. Chaffetz (to the manager's amendment 
and the bill) to strike the ``specific and articulable'' facts 
requirement for NSLs and replace it with a requirement for 
facts showing relevance to an authorized investigation to 
protect against international terrorism or clandestine 
intelligence activities. Defeated 18 to 11.

                                                 ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Gutierrez...................................................
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................              X
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             11              18
----------------------------------------------------------------------------------------------------------------

    4. A manager's amendment by Mr. Conyers to make a number of 
clarifying refinements. Agreed to 19 to 11.

                                                 ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Gutierrez...................................................
Ms. Baldwin.....................................................              X
Mr. Gonzalez....................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
Mr. Maffei......................................................              X
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................                              X
Mr. Issa........................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Rooney......................................................                              X
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             19              11
----------------------------------------------------------------------------------------------------------------

    5. An amendment by Mr. Schiff to (1) replace the ``specific 
and articulable'' facts requirement for a section 215 order 
with ``statement of facts,'' (2) strike the presumptive 
relevance for documents that pertain to a foreign power or 
agent, the activities of a suspected agent of a foreign power, 
who is the subject of the authorized investigation, or an 
individual in contact with, or known to, the suspected agent, 
and (3) require the President to report to Congress regarding 
whether certain operations authorized by Section 215 could be 
appropriately modified so as to enhance civil liberties 
protections. Agreed to 19 to 12.

                                                 ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Gutierrez...................................................
Ms. Baldwin.....................................................              X
Mr. Gonzalez....................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
Mr. Maffei......................................................              X
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Issa........................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Rooney......................................................                              X
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             19              12
----------------------------------------------------------------------------------------------------------------

    6. An amendment by Mr. Lungren (to the amendment by Mr. 
Schiff) restoring the ``presumptive relevance'' standard for 
certain documents sought under section 215. Defeated 19 to 13.

                                                 ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Gutierrez...................................................
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................              X
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             13              19
----------------------------------------------------------------------------------------------------------------

    7. An amendment by Mr. Smith to reauthorize ``Lone Wolf'' 
until December 31, 2013. Defeated 15 to 15.

                                                 ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Mr. Cohen.......................................................
Mr. Johnson.....................................................
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................                              X
Mr. Gutierrez...................................................
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Rooney......................................................              X
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             15              15
----------------------------------------------------------------------------------------------------------------

    8. An amendment by Mr. Rooney to strike changes to the 
standard for issuance of a criminal pen register and trap-and-
trace device. Defeated 12 to 10.

                                                 ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................                              X
Mr. Gutierrez...................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Rooney......................................................              X
Mr. Harper......................................................
                                                                 -----------------------------------------------
    Total.......................................................             10              12
----------------------------------------------------------------------------------------------------------------

    9. An amendment by Mr. Lungren to require a court, when 
reviewing a section 215 nondisclosure order, to give 
``substantial weight'' to a certification by a high-level 
government official that disclosure may endanger the national 
security of the United States or interfere with diplomatic 
relations. Defeated 11 to 8.

                                                 ROLLCALL NO. 9
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................                              X
Mr. Gutierrez...................................................
Ms. Baldwin.....................................................                              X
Mr. Gonzalez....................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................
Mr. King........................................................
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Rooney......................................................              X
Mr. Harper......................................................
                                                                 -----------------------------------------------
    Total.......................................................              8              11
----------------------------------------------------------------------------------------------------------------

    10. An amendment by Mr. Issa to modify the standards for 
``sneak and peek'' authority. Agreed to 16 to 10.

                                                 ROLLCALL NO. 10
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Delahunt....................................................              X
Mr. Wexler......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Gutierrez...................................................              X
Ms. Baldwin.....................................................              X
Mr. Gonzalez....................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
Mr. Maffei......................................................              X
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Issa........................................................                              X
Mr. Forbes......................................................
Mr. King........................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................
Mr. Rooney......................................................                              X
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             16              10
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 3845, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, December 10, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3845, the USA 
PATRIOT Amendments Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable Lamar S. Smith.
        Ranking Member
H.R. 3845--USA PATRIOT Amendments Act of 2009.
    CBO estimates that implementing H.R. 3845 would cost about 
$9 million over the 2010-2014 period and less than $500,000 
annually in subsequent years, assuming the availability of 
appropriated funds. Enacting the bill could affect direct 
spending and revenues, but CBO estimates that any such effects 
would not be significant.
    CBO has determined that the provisions of H.R. 3845 are 
either excluded from review for mandates under the Unfunded 
Mandates Reform Act because they are necessary for national 
security or contain no mandates as defined by that act.
    The Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism 
(USA PATRIOT) Act of 2001 (Public Law 107-56) and the USA 
PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 
109-177) expanded the powers of Federal law enforcement and 
intelligence agencies to investigate and prosecute terrorist 
acts. H.R. 3845 would extend for four years certain provisions 
of those acts that will otherwise expire on December 31, 2009. 
In addition, the bill would modify the laws relating to certain 
investigations of potential terrorist activity and require the 
Department of Justice (DOJ) to prepare additional reports and 
audits relating to those investigations.
    H.R. 3845 would require the DOJ Inspector General, by 
December 31, 2014, to conduct audits of the department's use of 
certain investigative powers during the 2007-2013 period. Based 
on information from DOJ, we expect that the department would 
need to hire about 10 people to carry out those audits. CBO 
estimates that auditing effort would cost about $1 million in 
fiscal year 2010, about $2 million annually over the 2011-2014 
period, and less than $500,000 annually thereafter for DOJ to 
complete the audits and reports required by the bill. Such 
spending would be subject to the availability of appropriated 
funds.
    Because those prosecuted and convicted under H.R. 3845 
could be subject to civil and criminal fines, the Federal 
Government might collect additional fines if the legislation is 
enacted. Collections of civil fines are recorded in the budget 
as revenues. Criminal fines are recorded as revenues, deposited 
in the Crime Victims Fund, and later spent. CBO expects that 
any additional revenues and direct spending would not be 
significant because of the small number of cases likely to be 
affected.
    On October 23, 2009, CBO transmitted a cost estimate for S. 
1692, the USA PATRIOT Act Sunset Extension Act of 2009, as 
reported by the Senate Committee on the Judiciary on October 
13, 2009. That bill would require fewer DOJ audits and CBO 
estimated that implementing S. 1692 would cost about $5 million 
over the 2010-2012 period and less than $500,000 annually in 
subsequent years, assuming the availability of appropriated 
funds.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
3845 is intended to reauthorize and modify certain surveillance 
and information gathering authorities to ensure the government 
can conduct efficient, thorough and effective national security 
investigations, in a manner that appropriately protects privacy 
and civil liberties interests.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8 of the Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3845 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee:
    Sec. 1. Short title and table of contents. Section 1 sets 
forth the short title of the bill as the ``USA PATRIOT 
Amendments Act of 2009'' and provides a table of contents for 
the entire bill.

              TITLE I--USA PATRIOT ACT RELATED AMENDMENTS

    Sec. 101. Roving Wiretaps. Section 101 of the bill 
clarifies Congressional intent that when using roving wiretap 
authority, the government must describe its target with a 
sufficient degree of particularity to allow a judge to be able 
to distinguish the target from other potential users of places 
or facilities to be surveilled, so as to avoid surveillance of 
unrelated targets at unrelated places.
    Sec. 102. Extension of Sunset of Sections 206 and 215 of 
USA PATRIOT Act. Section 102 of the bill extends the sunset 
dates of roving wiretaps and FISA business records provisions 
to December 31, 2013.
    Sec. 103. Access to Certain Tangible Things under section 
501 of the Foreign Intelligence Surveillance Act of 1978. 
Section 103 of the bill modifies the standard for obtaining a 
court order for tangible things under section 501 of FISA, as 
amended by section 215 of the USA PATRIOT Act, by removing the 
presumption of relevance for certain categories of documents, 
and requiring the government to provide a statement of facts 
and circumstances relied upon by the applicant to justify the 
applicant's belief that the tangible things sought are relevant 
to an authorized foreign intelligence, counterterrorism, or 
counterintelligence investigation. It permits a recipient to 
challenge both the underlying order and any associated 
nondisclosure order immediately, and requires the government to 
notify the recipient of this right at the time the order is 
served. It eliminates the government's right to conclusively 
defeat a challenge to a nondisclosure order with a 
certification. And it facilitates continuing court oversight of 
minimization procedures through compliance assessments 
pertaining to specific section 215 orders.
    Section 103 of the bill also requires the government to 
meet a heightened standard for using a section 215 order to 
obtain personally identifiable information concerning library 
patrons and bookseller information, of ``specific and 
articulable facts'' showing that there are reasonable grounds 
to believe that the records sought are ``relevant to an 
authorized investigation . . . to obtain foreign intelligence 
information not concerning a United States person or to protect 
against international terrorism or clandestine intelligence 
activities'' and that the records ``pertain to a foreign power 
or agent of a foreign power, are relevant to the activities of 
a suspected agent of a foreign power who is the subject of such 
authorized investigation, or pertain to an individual in 
contact with, or known to, a suspected agent of a foreign power 
who is the subject of such authorized investigation.''
    Sec. 104. Sunset Relating to Individual Terrorists as 
Agents of Foreign Powers. Section 104 of the bill allows the 
``Lone Wolf'' provision to sunset on December 31, 2009.
    Sec. 105. Audits. Section 105 of the bill requires the DOJ 
Inspector General to audit and submit reports to Congress for 
section 215 ``tangible things'' orders, national security 
letters (NSLs), and FISA pen register and trap-and-trace 
orders, and criminal pen register and trap-and-trace orders for 
all calendar years through 2013.
    Sec. 106. Criminal ``sneak and peek'' searches. Section 106 
of the bill shortens the period after which the government must 
seek an extension off time for delaying notice of a ``sneak and 
peek'' search warrant to seven (7) days, from the current 30 
days or longer. Any single extension to delay notice granted by 
a court is limited to 21 days, though multiple extensions are 
possible. Moreover, any application for extension must be made 
by the Senate-confirmed United States Attorney for the district 
seeking the delay. If the government's rationale for delaying 
notice of the search is the possibility of jeopardizing an 
investigation or unduly delaying a trial, the government must 
now establish that such an outcome is ``likely to'' occur.
    Sec. 107. Orders for Pen Registers and Trap and Trace 
Devices for Foreign Intelligence Purposes. Section 107 of the 
bill modifies the standard for obtaining a pen/trap to require 
the government to provide a statement of facts and 
circumstances relied upon by the applicant to justify the 
applicant's belief that the information likely to be obtained 
is relevant. This ensures that the government is presenting a 
thorough statement of facts to the court, and strengthens 
judicial oversight. Under current law, in order to obtain a 
FISA pen/trap, the government must merely certify that the 
information sought is foreign intelligence information or is 
relevant to an investigation to protect against international 
terrorism or clandestine intelligence activities.
    Section 107 also codifies procedures for minimization of 
the retention and dissemination of information obtained 
pursuant to 50 U.S.C. Sec. 1842, where appropriate in 
exceptional circumstances. This is intended to provide a 
statutory footing for the existing practice whereby specialized 
minimization procedures are implemented in certain limited 
circumstances, under FISC authorization and oversight.
    Sec. 108. Public Reporting on the Foreign Intelligence 
Surveillance Act. Section 108 of the bill requires that annual 
public reporting of numbers of requests for surveillance be 
given separately for electronic surveillance, physical 
searches, tangible things orders, and pen registers, rather 
than the public reporting of these requests in one aggregate 
number.
    Sec. 109. Challenges to Nationwide Orders for Electronic 
Surveillance. Section 109 of the bill permits a provider of 
electronic communications service or remote computing service 
to challenge a subpoena, order, or warrant requiring disclosure 
of customer communications or records in either the district in 
which the order was issued or the district in which the order 
was served. Current law only allows a challenge in the district 
where the order was issued.
    Sec. 110. Report on Civil Liberties and Privacy 
Protections. Section 110 of the bill helps ensure that 
appropriate consideration is given to civil liberties 
protections with respect to 215 orders used to support 
sensitive collections, by calling on the President to report to 
Congress regarding whether such collections could be modified 
so as to enhance protections for civil liberties, the nature 
and likely costs of any potential modifications, and any 
technical challenges or potential impact on operations of 
potential modifications. This report is to be submitted to this 
Committee, the House Permanent Select Committee on 
Intelligence, and the Committee on the Judiciary and the Select 
Committee on Intelligence of the Senate, no later than 180 days 
after the date of enactment of the bill.

               TITLE II--NATIONAL SECURITY LETTER REFORM

    Sec. 201. Short Title. Section 201 sets forth the short 
tile of title II as the ``National Security Letter Reform Act 
of 2009.''
    Sec. 202. Sunset. Section 202 provides a sunset date of 
December 31, 2013 for the new statutory authorization governing 
NSLs, after which the relevant NSL statutes would, in the 
absence of new legislation, revert to how they read on October 
25, 2001, prior to enactment of the USA PATRIOT Act.
    Sec. 203. National Security Letter Defined. Section 203 of 
the bill defines ``national security letter,'' for the purposes 
of this bill, as a request for information under one of the 
enumerated provisions of law.
    Sec. 204. Modification of Standard. Section 204 of the bill 
requires, before an NSL can issue, that an official with the 
authority to issue such letter document and retain a statement 
of specific and articulable facts showing that there are 
reasonable grounds to believe that the information sought: (1) 
pertains to a foreign power or an agent of a foreign power; (2) 
is relevant to the activities of a suspected agent of a foreign 
power that is the subject of such authorized investigation; or 
(3) pertains to an individual in contact with, or personally 
known to, a suspected agent of a foreign power that is the 
subject of such authorized investigation. Current law requires 
only relevance to an authorized investigation before an NSL can 
issue, and does not require a government official to document 
and retain a statement of facts showing how the new standard is 
satisfied.
    Sec. 205. Notification of Right to Judicial Review of 
Nondisclosure Order.  Section 205 of the bill requires the 
government to notify a recipient of an NSL of a right to 
judicial review of any nondisclosure requirement imposed in 
connection with the NSL, and provides that the nondisclosure 
requirement will remain in effect during the pendency of any 
judicial review proceedings. Current law does not require such 
notification.
    Sec. 206. Disclosure for Law Enforcement Purposes. Section 
206 of the bill requires the Attorney General, or a designee of 
the Attorney General at a level not lower than Section Chief of 
a division of the Department of Justice, to authorize the use 
of any information acquired from an NSL in a criminal 
proceeding. Current law does not impose any such authorization 
requirement.
    Sec. 207. Judicial Review of National Security Letter 
Nondisclosure Order. Section 207 of the bill establishes 
additional procedures for a recipient to seek judicial review 
of a nondisclosure requirement imposed in connection with an 
NSL. These procedures correct Constitutional defects in the 
issuance of NSL nondisclosure orders identified by the Second 
Circuit in Doe v. Mukasey. If the recipient wishes to obtain 
court review of a nondisclosure requirement, the recipient must 
notify the government. The government has 30 days after the 
receipt of such notification to apply for a court order 
prohibiting disclosure regarding the NSL. The nondisclosure 
requirement remains in effect during the pendency of any 
judicial proceedings. The government's application for a 
nondisclosure order must include a certification from the 
Attorney General, the Deputy Attorney General, or the Director 
of the FBI (or the head of another agency if not part of DOJ) 
containing a statement of specific and articulable facts 
indicating that disclosure may result in a danger to the 
national security of the United States, interfere with a 
criminal, counterterrorism, or counterintelligence 
investigation, interfere with diplomatic relations, or result 
in danger to the life or physical safety of a person. If a 
court determines that there is reason to believe that 
disclosure will result in one of the enumerated harms, the 
court may issue a nondisclosure order, for no longer than 180 
days. The government can seek renewals of nondisclosure orders 
for additional periods of not longer than 180 days each. This 
section also eliminates the ``conclusive certification'' power 
under which certain high-level officials could make a general 
certification that disclosure might endanger the national 
security of the United States or interfere with diplomatic 
relations, with the result that such certification or 
recertification would, unless made in bad faith, automatically 
defeat any challenge to a nondisclosure order.
    Sec. 208. Minimization Procedures. Section 208 of the bill 
requires the Attorney General to establish minimization 
procedures governing the acquisition, retention, and 
dissemination by the Federal Bureau of Investigation in 
response to an NSL and to submit a copy of these procedures to 
this Committee, the House Permanent Select Committee on 
Intelligence, and the Committee on the Judiciary and the Select 
Committee on Intelligence of the Senate. Current statutory law 
does not require the government to apply minimization 
procedures to information acquired in response to an NSL, 
although this has become a common practice.
    Sec. 209. Public Reporting on National Security Letters. 
Section 209 requires annual public reporting on the number of 
requests for NSLs and greater specificity of the types persons 
targeted (e.g., U.S. persons v. non-U.S. persons).

                     TITLE III--GENERAL PROVISIONS

    Sec. 301. Sense of Congress on Level of Classification of 
Certain Programs. Section 301 of the bill expresses the sense 
of the Congress that the President should periodically review 
the level of classification of programs that make use of NSLs 
or authorities under the FISA statute, to determine if such 
programs can be declassified in whole or in part, without 
interfering with an ongoing investigation or otherwise 
threatening national security.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

             FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act may be cited as the ``Foreign Intelligence Surveillance Act 
of 1978''.

                            TABLE OF CONTENTS

     * * * * * * *

     TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN 
                          INTELLIGENCE PURPOSES

     * * * * * * *

 [TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE 
                                PURPOSES

[Sec. 501. Access to certain business records for foreign intelligence 
          and international terrorism investigations.
[Sec. 502. Congressional oversight.]

  TITLE V--ACCESS TO TANGIBLE THINGS FOR FOREIGN INTELLIGENCE PURPOSES

Sec. 501. Access to tangible things for foreign intelligence purposes 
          and international terrorism investigations.

           *       *       *       *       *       *       *

 TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN 
INTELLIGENCE PURPOSES

           *       *       *       *       *       *       *

                          ISSUANCE OF AN ORDER

    Sec. 105. (a) * * *

           *       *       *       *       *       *       *

    (c)(1) * * *
            (2) Directions.--An order approving an electronic 
        surveillance under this section shall direct--
                    (A) * * *
                    (B) that, upon the request of the 
                applicant, a specified communication or other 
                common carrier, landlord, custodian, or other 
                specified person, or in circumstances where the 
                Court [finds, based upon specific facts] 
                finds--
                            (i) that the target of the 
                        application is a foreign power, as 
                        defined in paragraph (1), (2), (3), or 
                        (6) of section 101(a), an agent of such 
                        a foreign power, or a specific 
                        individual; and
                            (ii) based upon specific facts 
                        provided in the application, that the 
                        actions of the target of the 
                        application may have the effect of 
                        thwarting the identification of a 
                        specified person, such other persons, 
                        furnish the applicant forthwith all 
                        information, facilities, or technical 
                        assistance necessary to accomplish the 
                        electronic surveillance in such a 
                        manner as will protect its secrecy and 
                        produce a minimum of interference with 
                        the services that such carrier, 
                        landlord, custodian, or other person is 
                        providing that target of electronic 
                        surveillance;

           *       *       *       *       *       *       *

    TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN 
                         INTELLIGENCE PURPOSES

                              DEFINITIONS

    Sec. 401. As used in this title:
            (1) * * *

           *       *       *       *       *       *       *

            (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.

 PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE AND 
                 INTERNATIONAL TERRORISM INVESTIGATIONS

    Sec. 402. (a) * * *

           *       *       *       *       *       *       *

    (c) Each application under this section shall require the 
approval of the Attorney General, or a designated attorney for 
the Government, and shall include--
            (1) the identity of the Federal officer seeking to 
        use the pen register or trap and trace device covered 
        by the application; [and]
            (2) [a certification by the applicant] a statement 
        of the facts relied upon by the applicant to justify 
        the belief of the applicant that the information likely 
        to be obtained is foreign intelligence information not 
        concerning a United States person or is relevant to an 
        ongoing investigation to protect against international 
        terrorism or clandestine intelligence activities, 
        provided that such investigation of a United States 
        person is not conducted solely upon the basis of 
        activities protected by the first amendment to the 
        Constitution[.]; and
            (3) a statement of proposed minimization 
        procedures.
    (d)(1) * * *
    (2) An order issued under this section--
            (A) * * *

           *       *       *       *       *       *       *

            (C) shall direct that, upon the request of the 
        applicant, the provider of a wire or electronic 
        communication service shall disclose to the Federal 
        officer using the pen register or trap and trace device 
        covered by the order--
                    (i) in the case of the customer or 
                subscriber using the service covered by the 
                order (for the period specified by the order)--
                            (I) * * *

           *       *       *       *       *       *       *

                            (VII) any mechanisms and sources of 
                        payment for such service, including the 
                        number of any credit card or bank 
                        account utilized for payment for such 
                        service[; and];
                    (ii) if available, with respect to any 
                customer or subscriber of incoming or outgoing 
                communications to or from the service covered 
                by the order--
                            (I) * * *

           *       *       *       *       *       *       *

                            (IV) the length of the provision of 
                        service by such provider to such 
                        customer or subscriber and the types of 
                        services utilized by such customer or 
                        subscriber[.]; and
            (D) shall, if the judge finds that there are 
        exceptional circumstances, direct that minimization 
        procedures be followed.

           *       *       *       *       *       *       *

    (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.

                    AUTHORIZATION DURING EMERGENCIES

    Sec. 403. (a) * * *

           *       *       *       *       *       *       *

    (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.
    [(c)] (d)(1) * * *

           *       *       *       *       *       *       *

                           USE OF INFORMATION

    Sec. 405. (a)(1) Information acquired from the use of a pen 
register or trap and trace device installed pursuant to this 
title 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 the 
provisions of this section and the minimization procedures 
under this title, if required.

           *       *       *       *       *       *       *

   TITLE V--ACCESS TO [CERTAIN BUSINESS RECORDS] TANGIBLE THINGS FOR 
                     FOREIGN INTELLIGENCE PURPOSES

SEC. 501. ACCESS TO [CERTAIN BUSINESS RECORDS] TANGIBLE THINGS FOR 
                    FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM 
                    INVESTIGATIONS.

    (a) * * *
    (b) Each application under this section--
            (1) * * *
            (2) shall include--
                    (A) [a statement of facts showing] a 
                statement of the facts and circumstances relied 
                upon by the applicant to justify the belief of 
                the applicant that there are reasonable grounds 
                to believe that the tangible things sought 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, such things being 
                presumptively relevant to an authorized 
                investigation if the applicant shows in the 
                statement of the facts that they pertain to--
                            [(i) a foreign power or an agent of 
                        a foreign power;
                            [(ii) the activities of a suspected 
                        agent of a foreign power who is the 
                        subject of such authorized 
                        investigation; or
                            [(iii) an individual in contact 
                        with, or known to, a suspected agent of 
                        a foreign power who is the subject of 
                        such authorized investigation; and] 
                        clandestine intelligence activities;
                    (B) if the records sought contain 
                bookseller information, or are from a library 
                (as defined in section 213(1) of the Library 
                Services and Technology Act (20 U.S.C. 
                9122(1))) and contain personally identifiable 
                information about a patron of such library, a 
                statement of specific and articulable 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 who is the 
                        subject of such authorized 
                        investigation; and
                    [(B)] (C) an enumeration of the 
                minimization procedures adopted by the Attorney 
                General under subsection (g) that are 
                applicable to the retention and dissemination 
                by the Federal Bureau of Investigation of any 
                tangible things to be made available to the 
                Federal Bureau of Investigation based on the 
                order requested in such application.
    (c)(1) * * *
    (2) An order under this subsection--
            (A) * * *

           *       *       *       *       *       *       *

            (D) may only require the production of a tangible 
        thing if such thing can be obtained with a subpoena 
        duces tecum issued by a court of the United States in 
        aid of a grand jury investigation or with any other 
        order issued by a court of the United States directing 
        the production of records or tangible [things; and] 
        things;
            (E) shall not disclose that such order is issued 
        for purposes of an investigation described in 
        [subsection (a).] subsection (a); and
            (F) shall direct the applicant to provide notice to 
        each person receiving such order of--
                    (i) the right to challenge the legality of 
                a production order or nondisclosure order by 
                filing a petition in accordance with subsection 
                (f); and
                    (ii) the procedures to follow to file such 
                petition in accordance with such subsection.

           *       *       *       *       *       *       *

    (f)(1) * * *
    (2)(A)(i) A person receiving [a production order] a 
production order or nondisclosure 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).

           *       *       *       *       *       *       *

    (C)(i) * * *
    [(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)] (ii) 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.

           *       *       *       *       *       *       *

    (g) Minimization Procedures.--
            (1) * * *
            (2) Compliance assessment.--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 
        such order, a judge may assess compliance with the 
        minimization procedures required to be followed under 
        such order by reviewing the circumstances under which 
        information concerning United States persons was 
        retained or disseminated.
            [(2)] (3) Defined.--In this section, the term 
        ``minimization procedures'' means--
                    (A) * * *

           *       *       *       *       *       *       *

    (i) Bookseller Information Defined.--In this section, the 
term ``bookseller information'' means personally identifiable 
information concerning the purchase (including subscription 
purchases) or rental of books, journals, or magazines, whether 
in print or digitally.

           *       *       *       *       *       *       *

                    TITLE VI--REPORTING REQUIREMENT

SEC. 601. SEMIANNUAL REPORT OF THE ATTORNEY GENERAL.

    (a) * * *
    (b) Public Report.--The Attorney General shall make 
publicly available the portion of each report under subsection 
(a) relating to paragraph (1) of such subsection.
    [(b)] (c) Frequency.--The first report under this section 
shall be submitted not later than 6 months after the date of 
enactment of this section. Subsequent reports under this 
section shall be submitted semi-annually thereafter.
    [(c)] (d) Submissions to Congress.--The Attorney General 
shall submit to the committees of Congress referred to in 
subsection (a)--
            (1) * * *

           *       *       *       *       *       *       *

    [(d)] (e) Protection of National Security.--The Attorney 
General, in consultation with the Director of National 
Intelligence, may authorize redactions of materials described 
in [subsection (c)] subsection (d) that are provided to the 
committees of Congress referred to in subsection (a), if such 
redactions are necessary to protect the national security of 
the United States and are limited to sensitive sources and 
methods information or the identities of targets.
    [(e)] (f) Definitions.--In this section:
            (1) * * *

           *       *       *       *       *       *       *

                              ----------                              

        USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005

           *       *       *       *       *       *       *
TITLE I--USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT

           *       *       *       *       *       *       *

SEC. 102. USA PATRIOT ACT SUNSET PROVISIONS.

    (a) * * *
    (b) Sections 206 and 215 Sunset.--
            (1) In general.--Effective [December 31, 2009] 
        December 31, 2013, the Foreign Intelligence 
        Surveillance Act of 1978 is amended so that sections 
        501, 502, and 105(c)(2) read as they read on October 
        25, 2001.

           *       *       *       *       *       *       *

SEC. 106A. AUDIT ON ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN 
                    INTELLIGENCE PURPOSES.

    (a) * * *
    (b) Requirements.--The audit required under subsection (a) 
shall include--
            (1) an examination of each instance in which the 
        Attorney General, any other officer, employee, or agent 
        of the Department of Justice, the Director of the 
        Federal Bureau of Investigation, or a designee of the 
        Director, submitted an application to the Foreign 
        Intelligence Surveillance Court (as such term is 
        defined in section 301(3) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1821(3))) for an 
        order under section 501 of such Act during the calendar 
        years of 2002 through [2006] 2013, including--
                    (A) * * *

           *       *       *       *       *       *       *

            (5) an examination of the effectiveness of such 
        section as an investigative tool, including--
                    (A) * * *

           *       *       *       *       *       *       *

                    (C) with respect to [calendar year 2006] 
                each of calendar years 2006 through 2013, an 
                examination of the minimization procedures 
                adopted by the Attorney General under section 
                501(g) of such Act and whether such 
                minimization procedures protect the 
                constitutional rights of United States persons;

           *       *       *       *       *       *       *

    (c) Submission Dates.--
            (1) * * *

           *       *       *       *       *       *       *

            (3) Calendar years 2007 through 2009.--Not later 
        than December 31, 2010, 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 this section for 
        calendar years 2007 through 2009.
            (4) Calendar years 2010 through 2013.--Not later 
        than December 31, 2011, and annually thereafter until 
        December 31, 2014, 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 this section for 
        the preceding calendar year.
    (d) Prior Notice to Attorney General and Director of 
National Intelligence; Comments.--
            (1) Notice.--Not less than 30 days before the 
        submission of a report under subsection (c)(1) [or 
        (c)(2)], (c)(2), (c)(3), or (c)(4), the Inspector 
        General of the Department of Justice shall provide such 
        report to the Attorney General and the Director of 
        National Intelligence.
            (2) Comments.--The Attorney General or the Director 
        of National Intelligence may provide comments to be 
        included in the reports submitted under subsections 
        (c)(1) [and (c)(2)], (c)(2), (c)(3), or (c)(4) as the 
        Attorney General or the Director of National 
        Intelligence may consider necessary.
    (e) Unclassified Form.--The reports submitted under 
subsections (c)(1) [and (c)(2)], (c)(2), (c)(3), or (c)(4) and 
any comments included under subsection (d)(2) shall be in 
unclassified form, but may include a classified annex.

           *       *       *       *       *       *       *

SEC. 118. REPORTS ON NATIONAL SECURITY LETTERS.

    (a) * * *

           *       *       *       *       *       *       *

    (c) Report on Requests for National Security Letters.--
            (1) In general.--In April of each year, the 
        Attorney General shall submit to Congress an aggregate 
        report setting forth with respect to the preceding year 
        the total number of requests made by the Department of 
        Justice for information [concerning different United 
        States persons] under--
                    (A) section 2709 of title 18, United States 
                Code (to access certain communication service 
                provider records)[, excluding the number of 
                requests for subscriber information];

           *       *       *       *       *       *       *

            (2) Content.--
                    (A) In general.--Except as provided in 
                subparagraph (B), each report required under 
                this subsection shall include the total number 
                of requests described in paragraph (1) 
                requiring disclosure of information 
                concerning--
                            (i) United States persons;
                            (ii) persons who are not United 
                        States persons;
                            (iii) persons who are the subjects 
                        of authorized national security 
                        investigations; or
                            (iv) persons who are not the 
                        subjects of authorized national 
                        security investigations.
                    (B) Exception.--With respect to the number 
                of requests for subscriber information under 
                section 2709 of title 18, United States Code, a 
                report required under this subsection need not 
                provide information separated into each of the 
                categories described in subparagraph (A).
            [(2)] (3) Unclassified form.--The report under this 
        section shall be submitted in unclassified form.

           *       *       *       *       *       *       *

SEC. 119. AUDIT OF USE OF NATIONAL SECURITY LETTERS.

    (a) * * *
    (b) Requirements.--The audit required under subsection (a) 
shall include--
            (1) an examination of the use of national security 
        letters by the Department of Justice during calendar 
        years 2003 through [2006] 2013;

           *       *       *       *       *       *       *

    (c) Submission Dates.--
            (1) * * *

           *       *       *       *       *       *       *

            (3) Calendar years 2007 through 2009.--Not later 
        than December 31, 2010, 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 this section for 
        calendar years 2007 through 2009.
            (4) Calendar years 2010 through 2013.--Not later 
        than December 31, 2011, and annually thereafter until 
        December 31, 2014, 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 this section for 
        the previous calendar year.
    (d) Prior Notice to Attorney General and Director of 
National Intelligence; Comments.--
            (1) Notice.--Not less than 30 days before the 
        submission of a report under subsection (c)(1) [or 
        (c)(2)], (c)(2), (c)(3), or (c)(4), the Inspector 
        General of the Department of Justice shall provide such 
        report to the Attorney General and the Director of 
        National Intelligence.
            (2) Comments.--The Attorney General or the Director 
        of National Intelligence may provide comments to be 
        included in the reports submitted under subsection 
        (c)(1) [or (c)(2)], (c)(2), (c)(3), or (c)(4) as the 
        Attorney General or the Director of National 
        Intelligence may consider necessary.
    (e) Unclassified Form.--The reports submitted under 
subsection (c)(1) [or (c)(2)], (c)(2), (c)(3), or (c)(4) and 
any comments included under subsection (d)(2) shall be in 
unclassified form, but may include a classified annex.

           *       *       *       *       *       *       *

                              ----------                              

        INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004

           *       *       *       *       *       *       *
                     TITLE VI--TERRORISM PREVENTION

     Subtitle A--Individual Terrorists as Agents of Foreign Powers

SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.

    (a) * * *
    (b) Sunset.--
            (1) In general.--Except as provided in paragraph 
        (2), [the amendment made by subsection (a) shall cease 
        to have effect] effective on December 31, 2009[.]--
                    (A) subparagraph (C) of section 101(b)(1) 
                of the Foreign Intelligence Surveillance Act of 
                1978 (50 U.S.C. 1801(b)(1)) is repealed;
                    (B) subparagraphs (D) and (E) of such 
                section are redesignated as subparagraphs (C) 
                and (D), respectively;
                    (C) paragraph (2) of section 601(a) of such 
                Act (50 U.S.C. 1871(a)) is repealed; and
                    (D) paragraphs (3), (4), and (5) of such 
                section are redesignated as paragraphs (2), 
                (3), and (4), respectively.
            (2) [Exception] Exception.--
                    (A) Existing investigations.--With respect 
                to any particular foreign intelligence 
                investigation that began before the date on 
                which the provisions referred to in paragraph 
                (1) cease to have effect, or with respect to 
                any particular offense or potential offense 
                that began or occurred before the date on which 
                the provisions cease to have effect, such 
                provisions shall continue in effect.
                    (B) Reports.--Notwithstanding the repeals 
                made by paragraph (1), the first report 
                required under section 601(a) of the Foreign 
                Intelligence Surveillance Act of 1978 (50 
                U.S.C. 1871(a)) that is submitted after the 
                effective date of such repeals shall include 
                the number of individuals covered by an order 
                issued pursuant to section 101(b)(1)(C) of such 
                Act (as in effect on the day before such 
                effective date).

           *       *       *       *       *       *       *

                              ----------                              

                      TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *
PART I--CRIMES

           *       *       *       *       *       *       *

      CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND 
TRANSACTIONAL RECORDS ACCESS

           *       *       *       *       *       *       *

Sec. 2703. Required disclosure of customer communications or records

    (a) * * *

           *       *       *       *       *       *       *

    (h) Judicial Review.--A provider of electronic 
communication service or remote computing service may challenge 
a subpoena, order, or warrant requiring disclosure of customer 
communications or records under this section in--
            (1) the United States district court for the 
        district in which the order was issued; or
            (2) the United States district court for the 
        district in which the order was served.

           *       *       *       *       *       *       *

[Pursuant to section 202(a) of H.R. 3845, effective December 31, 2013, 
  section 2709 is amended to read as such section read on October 25, 
                                 2001.]

[Sec. 2709. Counterintelligence access to telephone toll and 
                    transactional records

    [(a) Duty to Provide.--A wire or electronic communication 
service provider shall comply with a request for subscriber 
information and toll billing records information, or electronic 
communication transactional records in its custody or 
possession made by the Director of the Federal Bureau of 
Investigation under subsection (b) of this section.
    [(b) Required Certification.--The Director of the Federal 
Bureau of Investigation, or his 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--
            [(1) request the name, address, length of service, 
        and local and long distance toll billing records of a 
        person or entity if the Director (or his designee) 
        certifies in writing to the wire or electronic 
        communication service provider to which the request is 
        made that the name, address, length of service, and 
        toll billing records sought are relevant to an 
        authorized investigation to protect against 
        international terrorism or clandestine intelligence 
        activities, provided that such an investigation of a 
        United States person is not conducted solely on the 
        basis of activities protected by the first amendment to 
        the Constitution of the United States; and
            [(2) request the name, address, and length of 
        service of a person or entity if the Director (or his 
        designee) certifies in writing to the wire or 
        electronic communication service provider to which the 
        request is made that the information sought is relevant 
        to an authorized investigation to protect against 
        international terrorism or clandestine intelligence 
        activities, provided that such an investigation of a 
        United States person is not conducted solely upon the 
        basis of activities protected by the first amendment to 
        the Constitution of the United States.
    [(c) Prohibition of Certain Disclosure.--
            [(1) If the Director of the Federal Bureau of 
        Investigation, or his 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, certifies that otherwise 
        there may result a danger to the national security of 
        the United States, interference with a criminal, 
        counterterrorism, or counterintelligence investigation, 
        interference with diplomatic relations, or danger to 
        the life or physical safety of any person, no wire or 
        electronic communications service provider, or officer, 
        employee, or agent thereof, shall disclose to any 
        person (other than those to whom such disclosure is 
        necessary to comply with the request or an attorney to 
        obtain legal advice or legal assistance with respect to 
        the request) that the Federal Bureau of Investigation 
        has sought or obtained access to information or records 
        under this section.
            [(2) The request shall notify the person or entity 
        to whom the request is directed of the nondisclosure 
        requirement under paragraph (1).
            [(3) Any recipient disclosing to those persons 
        necessary to comply with the request or to an attorney 
        to obtain legal advice or legal assistance with respect 
        to the request shall inform such person of any 
        applicable nondisclosure requirement. Any person who 
        receives a disclosure under this subsection shall be 
        subject to the same prohibitions on disclosure under 
        paragraph (1).
            [(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).
    [(d) Dissemination by Bureau.--The Federal Bureau of 
Investigation may disseminate information and records obtained 
under this section only as provided in guidelines approved by 
the Attorney General for foreign intelligence collection and 
foreign counterintelligence investigations conducted by the 
Federal Bureau of Investigation, and, with respect to 
dissemination to an agency of the United States, only if such 
information is clearly relevant to the authorized 
responsibilities of such agency.
    [(e) Requirement That Certain Congressional Bodies Be 
Informed.--On a semiannual basis the Director of the Federal 
Bureau of Investigation shall fully inform the Permanent Select 
Committee on Intelligence of the House of Representatives and 
the Select Committee on Intelligence of the Senate, and the 
Committee on the Judiciary of the House of Representatives and 
the Committee on the Judiciary of the Senate, concerning all 
requests made under subsection (b) of this section.
    [(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.]

Sec. 2709. Counterintelligence access to telephone toll and 
                    transactional records

    (a) Duty to Provide.--A wire or electronic communication 
service provider shall comply with a request for subscriber 
information and toll billing records information, or electronic 
communication transactional records in its custody or 
possession made by the Director of the Federal Bureau of 
Investigation under subsection (b) of this section.
    (b) Required Certification.--The Director of the Federal 
Bureau of Investigation, or his designee in a position not 
lower than Deputy Assistant Director, may--
            (1) request the name, address, length of service, 
        and local and long distance toll billing records of a 
        person or entity if the Director (or his designee in a 
        position not lower than Deputy Assistant Director) 
        certifies in writing to the wire or electronic 
        communication service provider to which the request is 
        made that--
                    (A) the name, address, length of service, 
                and toll billing records sought are relevant to 
                an authorized foreign counterintelligence 
                investigation; and
                    (B) there are specific and articulable 
                facts giving reason to believe that the person 
                or entity to whom the information sought 
                pertains is a foreign power or an agent of a 
                foreign power as defined in section 101 of the 
                Foreign Intelligence Surveillance Act of 1978 
                (50 U.S.C. 1801); and
            (2) request the name, address, and length of 
        service of a person or entity if the Director (or his 
        designee in a position not lower than Deputy Assistant 
        Director) certifies in writing to the wire or 
        electronic communication service provider to which the 
        request is made that--
                    (A) the information sought is relevant to 
                an authorized foreign counterintelligence 
                investigation; and
                    (B) there are specific and articulable 
                facts giving reason to believe that 
                communication facilities registered in the name 
                of the person or entity have been used, through 
                the services of such provider, in communication 
                with--
                            (i) an individual who is engaging 
                        or has engaged in international 
                        terrorism as defined in section 101(c) 
                        of the Foreign Intelligence 
                        Surveillance Act or clandestine 
                        intelligence activities that involve or 
                        may involve a violation of the criminal 
                        statutes of the United States; or
                            (ii) a foreign power or an agent of 
                        a foreign power under circumstances 
                        giving reason to believe that the 
                        communication concerned international 
                        terrorism as defined in section 101(c) 
                        of the Foreign Intelligence 
                        Surveillance Act or clandestine 
                        intelligence activities that involve or 
                        may involve a violation of the criminal 
                        statutes of the United States.
    (c) Prohibition of Certain Disclosure.-- No wire or 
electronic communication service provider, 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 this section.
    (d) Dissemination by Bureau.--The Federal Bureau of 
Investigation may disseminate information and records obtained 
under this section only as provided in guidelines approved by 
the Attorney General for foreign intelligence collection and 
foreign counterintelligence investigations conducted by the 
Federal Bureau of Investigation, and, with respect to 
dissemination to an agency of the United States, only if such 
information is clearly relevant to the authorized 
responsibilities of such agency.
    (e) Requirement That Certain Congressional Bodies Be 
Informed.--On a semiannual basis the Director of the Federal 
Bureau of Investigation shall fully inform the Permanent Select 
Committee on Intelligence of the House of Representatives and 
the Select Committee on Intelligence of the Senate, and the 
Committee on the Judiciary of the House of Representatives and 
the Committee on the Judiciary of the Senate, concerning all 
requests made under subsection (b) of this section.

           *       *       *       *       *       *       *

PART II--CRIMINAL PROCEDURE

           *       *       *       *       *       *       *

CHAPTER 205--SEARCHES AND SEIZURES

           *       *       *       *       *       *       *

Sec. 3103a. Additional grounds for issuing warrant

    (a) * * *
    (b) Delay.--With respect to the issuance of any warrant or 
court order under this section, or any other rule of law, to 
search for and seize any property or material that constitutes 
evidence of a criminal offense in violation of the laws of the 
United States, any notice required, or that may be required, to 
be given may be delayed if--
            (1) the court finds reasonable cause to believe 
        that providing immediate notification of the execution 
        of the warrant [may have an adverse result (as defined 
        in section 2705, except if the adverse results consist 
        only of unduly delaying a trial)] may endanger the life 
        or physical safety of an individual, result in flight 
        from prosecution, result in the destruction of or 
        tampering with the evidence sought under the warrant, 
        or result in intimidation of potential witnesses, or is 
        likely to otherwise seriously jeopardize an 
        investigation or unduly delay a trial;

           *       *       *       *       *       *       *

            (3) the warrant provides for the giving of such 
        notice within a reasonable period not to exceed [30 
        days after the date of its execution, or on a later 
        date certain if the facts of the case justify a longer 
        period of delay.] 7 days after the date of its 
        execution.
    (c) Extensions of Delay.--Any period of delay authorized by 
this section may be extended by the court [for good cause 
shown, subject to the condition that extensions should only be 
granted upon an updated showing of the need for further delay 
and that each additional delay should be limited to periods of 
90 days or less, unless the facts of the case justify a longer 
period of delay.] upon application of the United States 
Attorney for the district seeking the delay, for additional 
periods of not more than 21 days for each application, if the 
court finds, for each application, reasonable cause to believe 
that notice of the execution of the warrant may endanger the 
life or physical safety of an individual, result in flight from 
prosecution, result in the destruction of or tampering with the 
evidence sought under the warrant, or result in intimidation of 
potential witnesses, or is likely to otherwise seriously 
jeopardize an investigation or unduly delay a trial.

           *       *       *       *       *       *       *

CHAPTER 223--WITNESSES AND EVIDENCE

           *       *       *       *       *       *       *

Sec. 3511. Judicial review of requests for information

    (a) * * *
    [(b)(1) The recipient of a request for records, a report, 
or other information under section 2709(b) of this title, 
section 626(a) or (b) or 627(a) of the Fair Credit Reporting 
Act, section 1114(a)(5)(A) of the Right to Financial Privacy 
Act, or section 802(a) of the National Security Act of 1947, 
may petition any court described in subsection (a) for an order 
modifying or setting aside a nondisclosure requirement imposed 
in connection with such a request.
    [(2) If the petition is filed within one year of the 
request for records, a report, or other information under 
section 2709(b) of this title, section 626(a) or (b) or 627(a) 
of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the 
Right to Financial Privacy Act, or section 802(a) of the 
National Security Act of 1947, the court may modify or set 
aside such a nondisclosure requirement if it 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. If, at the time of 
the petition, 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 such department, agency, or instrumentality, 
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 court 
finds that the certification was made in bad faith.
    [(3) If the petition is filed one year or more after the 
request for records, a report, or other information under 
section 2709(b) of this title, section 626(a) or (b) or 627(a) 
of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the 
Right to Financial Privacy Act, or section 802(a) of the 
National Security Act of 1947, the Attorney General, Deputy 
Attorney General, an Assistant Attorney General, or the 
Director of the Federal Bureau of Investigation, or his 
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, or in the case of a 
request by a department, agency, or instrumentality of the 
Federal Government other than the Federal Bureau of 
Investigation, the head or deputy head of such department, 
agency, or instrumentality, within ninety days of the filing of 
the petition, shall either terminate the nondisclosure 
requirement or re-certify that disclosure may result in a 
danger to the national security of the United States, 
interference with a criminal, counterterrorism, or 
counterintelligence investigation, interference with diplomatic 
relations, or danger to the life or physical safety of any 
person. In the event of re-certification, the court may modify 
or set aside such a nondisclosure requirement if it 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. If the 
recertification that disclosure may endanger the national 
security of the United States or interfere with diplomatic 
relations is made by the Attorney General, Deputy Attorney 
General, an Assistant Attorney General, or the Director of the 
Federal Bureau of Investigation, such certification shall be 
treated as conclusive unless the court finds that the 
recertification was made in bad faith. If the court denies a 
petition for an order modifying or setting aside a 
nondisclosure requirement under this paragraph, the recipient 
shall be precluded for a period of one year from filing another 
petition to modify or set aside such nondisclosure 
requirement.]
    (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 (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, 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 particular information about 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 any 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 may issue a nondisclosure 
                order for a period of not longer than 180 days.
                    (D) Denial.--If a district court of the 
                United States rejects an application for a 
                nondisclosure order or extension thereof, the 
                nondisclosure requirement shall no longer be in 
                effect.
            (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, of the existence of a result described 
        in subparagraphs (A) through (D) and 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 may issue a nondisclosure requirement order or 
        extension thereof under this subsection if the court 
        determines that there is reason to believe that 
        disclosure of the information subject to the 
        nondisclosure requirement during the applicable time 
        period will have a result described in paragraph (2).
            (4) Renewal.--A nondisclosure order under this 
        subsection may be renewed for additional periods of not 
        longer than 180 days each, upon a determination by the 
        court that a result described in paragraph (2) 
        justifies the renewal.
            (5) Early termination of nondisclosure order.--A 
        nondisclosure order the Government applied for under 
        paragraph (1)(B) ceases to have effect when the 
        Government discovers that the factual basis for that 
        order has ceased to exist and the Government so informs 
        the order's recipient. The Government upon making such 
        a discovery shall promptly so informs the recipient.

           *       *       *       *       *       *       *

                              ----------                              

       SECTION 1114 OF THE RIGHT TO FINANCIAL PRIVACY ACT OF 1978

[Pursuant to section 202(a) of H.R. 3845, effective December 31, 2013, 
section 1114(a)(5) is amended to read as such paragraph read on October 
                               25, 2001.]

                           SPECIAL PROCEDURES

      Sec. 1114. (a)(1) * * *

           *       *       *       *       *       *       *

      [(5)(A) Financial institutions, and officers, employees, 
and agents thereof, shall comply with a request for a 
customer's or entity's financial records made pursuant to this 
subsection by the Federal Bureau of Investigation when 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 in a Bureau field office designated by the Director) 
certifies in writing to the financial institution that such 
records are sought for foreign counter intelligence purposes to 
protect against international terrorism or clandestine 
intelligence activities, provided that such an investigation of 
a United States person is not conducted solely upon the basis 
of activities protected by the first amendment to the 
Constitution of the United States.
      [(B) The Federal Bureau of Investigation may disseminate 
information obtained pursuant to this paragraph only as 
provided in guidelines approved by the Attorney General for 
foreign intelligence collection and foreign counterintelligence 
investigations conducted by the Federal Bureau of 
Investigation, and, with respect to dissemination to an agency 
of the United States, only if such information is clearly 
relevant to the authorized responsibilities of such agency.
      [(C) On the dates provided in section 507 of the National 
Security Act of 1947, the Attorney General shall fully inform 
the congressional intelligence committees (as defined in 
section 3 of that Act (50 U.S.C. 401a)) concerning all requests 
made pursuant to this paragraph.
                    [(D) Prohibition of certain disclosure.--
                            [(i) If the Director of the Federal 
                        Bureau of Investigation, or his 
                        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, certifies 
                        that otherwise there may result a 
                        danger to the national security of the 
                        United States, interference with a 
                        criminal, counterterrorism, or 
                        counterintelligence investigation, 
                        interference with diplomatic relations, 
                        or danger to the life or physical 
                        safety of any person, no financial 
                        institution, or officer, employee, or 
                        agent of such institution, shall 
                        disclose to any person (other than 
                        those to whom such disclosure is 
                        necessary to comply with the request or 
                        an attorney to obtain legal advice or 
                        legal assistance with respect to the 
                        request) that the Federal Bureau of 
                        Investigation has sought or obtained 
                        access to a customer's or entity's 
                        financial records under subparagraph 
                        (A).
                            [(ii) The request shall notify the 
                        person or entity to whom the request is 
                        directed of the nondisclosure 
                        requirement under clause (i).
                            [(iii) Any recipient disclosing to 
                        those persons necessary to comply with 
                        the request or to an attorney to obtain 
                        legal advice or legal assistance with 
                        respect to the request shall inform 
                        such persons of any applicable 
                        nondisclosure requirement. Any person 
                        who receives a disclosure under this 
                        subsection shall be subject to the same 
                        prohibitions on disclosure under clause 
                        (i).
                            [(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).]
      (5)(A) Financial institutions, and officers, employees, 
and agents thereof, shall comply with a request for a 
customer's or entity's financial records made pursuant to this 
subsection by the Federal Bureau of Investigation when the 
Director of the Federal Bureau of Investigation (or the 
Director's designee) certifies in writing to the financial 
institution that such records are sought for foreign 
counterintelligence purposes and that there are specific and 
articulable facts giving reason to believe that the customer or 
entity whose records are sought is a foreign power or an agent 
of a foreign power as defined in section 101 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
      (B) The Federal Bureau of Investigation may disseminate 
information obtained pursuant to this paragraph only as 
provided in guidelines approved by the Attorney General for 
foreign intelligence collection and foreign counterintelligence 
investigations conducted by the Federal Bureau of 
Investigation, and, with respect to dissemination to an agency 
of the United States, only if such information is clearly 
relevant to the authorized responsibilities of such agency.
      (C) On a semiannual basis the Attorney General shall 
fully inform the Permanent Select Committee on Intelligence of 
the House of Representatives and the Select Committee on 
Intelligence of the Senate concerning all requests made 
pursuant to this paragraph.
      (D) No financial institution, or officer, employee, or 
agent of such institution, shall disclose to any person that 
the Federal Bureau of Investigation has sought or obtained 
access to a customer's or entity's financial records under this 
paragraph.

           *       *       *       *       *       *       *

                              ----------                              

                       FAIR CREDIT REPORTING ACT

TITLE VI--CONSUMER CREDIT REPORTING

           *       *       *       *       *       *       *

Sec. 601. Short title

    This title may be cited as the ``Fair Credit Reporting 
Act''.

           *       *       *       *       *       *       *

[Pursuant to section 202(a) of H.R. 3845, effective December 31, 2013, 
 sections 626(a), 626(b), and 627 are amended to read as such sections 
                       read on October 25, 2001.]

Sec. 626. Disclosures to FBI for counterintelligence purposes

    [(a) Identity of Financial Institutions.--Notwithstanding 
section 604 or any other provision of this title, a consumer 
reporting agency shall furnish to the Federal Bureau of 
Investigation the names and addresses of all financial 
institutions (as that term is defined in section 1101 of the 
Right to Financial Privacy Act of 1978) at which a consumer 
maintains or has maintained an account, to the extent that 
information is in the files of the agency, when presented with 
a written request for that information, signed by 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, which certifies 
compliance with this section. The Director or the Director's 
designee may make such a certification only if the Director or 
the Director's designee has determined in writing, that such 
information is sought for the conduct of an authorized 
investigation to protect against international terrorism or 
clandestine intelligence activities, provided that such an 
investigation of a United States person is not conducted solely 
upon the basis of activities protected by the first amendment 
to the Constitution of the United States.
    [(b) Identifying Information.--Notwithstanding the 
provisions of section 604 or any other provision of this title, 
a consumer reporting agency shall furnish identifying 
information respecting a consumer, limited to name, address, 
former addresses, places of employment, or former places of 
employment, to the Federal Bureau of Investigation when 
presented with a written request, signed by the Director 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, 
which certifies compliance with this subsection. The Director 
or the Director's designee may make such a certification only 
if the Director or the Director's designee has determined in 
writing that such information is sought for the conduct of an 
authorized investigation to protect against international 
terrorism or clandestine intelligence activities, provided that 
such an investigation of a United States person is not 
conducted solely upon the basis of activities protected by the 
first amendment to the Constitution of the United States.]
    (a) Identity of Financial Institutions.--Notwithstanding 
section 604 or any other provision of this title, a consumer 
reporting agency shall furnish to the Federal Bureau of 
Investigation the names and addresses of all financial 
institutions (as that term is defined in section 1101 of the 
Right to Financial Privacy Act of 1978) at which a consumer 
maintains or has maintained an account, to the extent that 
information is in the files of the agency, when presented with 
a written request for that information, signed by the Director 
of the Federal Bureau of Investigation, or the Director's 
designee, which certifies compliance with this section. The 
Director or the Director's designee may make such a 
certification only if the Director or the Director's designee 
has determined in writing that--
            (1) such information is necessary for the conduct 
        of an authorized foreign counterintelligence 
        investigation; and
            (2) there are specific and articulable facts giving 
        reason to believe that the consumer--
                    (A) is a foreign power (as defined in 
                section 101 of the Foreign Intelligence 
                Surveillance Act of 1978) or a person who is 
                not a United States person (as defined in such 
                section 101) and is an official of a foreign 
                power; or
                    (B) is an agent of a foreign power and is 
                engaging or has engaged in an act of 
                international terrorism (as that term is 
                defined in section 101(c) of the Foreign 
                Intelligence Surveillance Act of 1978) or 
                clandestine intelligence activities that 
                involve or may involve a violation of criminal 
                statutes of the United States.
    (b) Identifying Information.--Notwithstanding the 
provisions of section 604 or any other provision of this title, 
a consumer reporting agency shall furnish identifying 
information respecting a consumer, limited to name, address, 
former addresses, places of employment, or former places of 
employment, to the Federal Bureau of Investigation when 
presented with a written request, signed by the Director or the 
Director's designee, which certifies compliance with this 
subsection. The Director or the Director's designee may make 
such a certification only if the Director or the Director's 
designee has determined in writing that--
            (1) such information is necessary to the conduct of 
        an authorized counterintelligence investigation; and
            (2) there is information giving reason to believe 
        that the consumer has been, or is about to be, in 
        contact with a foreign power or an agent of a foreign 
        power (as defined in section 101 of the Foreign 
        Intelligence Surveillance Act of 1978).

           *       *       *       *       *       *       *

[Sec. 627. Disclosures to governmental agencies for counterterrorism 
                    purposes

    [(a) Disclosure.--Notwithstanding section 604 or any other 
provision of this title, a consumer reporting agency shall 
furnish a consumer report of a consumer and all other 
information in a consumer's file to a government agency 
authorized to conduct investigations of, or intelligence or 
counterintelligence activities or analysis related to, 
international terrorism when presented with a written 
certification by such government agency that such information 
is necessary for the agency's conduct or such investigation, 
activity or analysis.
    [(b)  Form of Certification.--The certification described 
in subsection (a) shall be signed by a supervisory official 
designated by the head of a Federal agency or an officer of a 
Federal agency whose appointment to office is required to be 
made by the President, by and with the advice and consent of 
the Senate.
    [(c) Confidentiality.--
            [(1) If the head of a government agency authorized 
        to conduct investigations of intelligence or 
        counterintelligence activities or analysis related to 
        international terrorism, or his designee, certifies 
        that otherwise there may result a danger to the 
        national security of the United States, interference 
        with a criminal, counterterrorism, or 
        counterintelligence investigation, interference with 
        diplomatic relations, or danger to the life or physical 
        safety of any person, no consumer reporting agency or 
        officer, employee, or agent of such consumer reporting 
        agency, shall disclose to any person (other than those 
        to whom such disclosure is necessary to comply with the 
        request or an attorney to obtain legal advice or legal 
        assistance with respect to the request), or specify in 
        any consumer report, that a government agency has 
        sought or obtained access to information under 
        subsection (a).
            [(2) The request shall notify the person or entity 
        to whom the request is directed of the nondisclosure 
        requirement under paragraph (1).
            [(3) Any recipient disclosing to those persons 
        necessary to comply with the request or to any attorney 
        to obtain legal advice or legal assistance with respect 
        to the request shall inform such persons of any 
        applicable nondisclosure requirement. Any person who 
        receives a disclosure under this subsection shall be 
        subject to the same prohibitions on disclosure under 
        paragraph (1).
            [(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) Rule of Construction.--Nothing in section 626 shall be 
construed to limit the authority of the Director of the Federal 
Bureau of Investigation under this section.
    [(e) Safe Harbor.--Notwithstanding any other provision of 
this title, any consumer reporting agency or agent or employee 
thereof making disclosure of consumer reports or other 
information pursuant to this section in good-faith reliance 
upon a certification of a government agency pursuant to the 
provisions of this section shall not be liable to any person 
for such disclosure under this subchapter, the constitution of 
any State, or any law or regulation of any State or any 
political subdivision of any State.
    [(f) Reports to Congress.--(1) On a semi-annual basis, the 
Attorney General shall fully inform the Committee on the 
Judiciary, the Committee on Financial Services, and the 
Permanent Select Committee on Intelligence of the House of 
Representatives and the Committee on the Judiciary, the 
Committee on Banking, Housing, and Urban Affairs, and the 
Select Committee on Intelligence of the Senate concerning all 
requests made pursuant to subsection (a).
    [(2) In the case of the semiannual reports required to be 
submitted under paragraph (1) to the Permanent Select Committee 
on Intelligence of the House of Representatives and the Select 
Committee on Intelligence of the Senate, the submittal dates 
for such reports shall be as provided in section 507 of the 
National Security Act of 1947 (50 U.S.C. 415b).]

           *       *       *       *       *       *       *

                              ----------                              

            SECTION 802 OF THE NATIONAL SECURITY ACT OF 1947

[Pursuant to section 202(a) of H.R. 3845, effective December 31, 2013, 
  section 802 is amended to read as such section read on October 25, 
                                 2001.]

             [REQUESTS BY AUTHORIZED INVESTIGATIVE AGENCIES

    [Sec. 802. (a)(1) Any authorized investigative agency may 
request from any financial agency, financial institution, or 
holding company, or from any consumer reporting agency, such 
financial records, other financial information, and consumer 
reports as may be necessary in order to conduct any authorized 
law enforcement investigation, counterintelligence inquiry, or 
security determination. Any authorized investigative agency may 
also request records maintained by any commercial entity within 
the United States pertaining to travel by an employee in the 
executive branch of Government outside the United States.
    [(2) Requests may be made under this section where--
            [(A) the records sought pertain to a person who is 
        or was an employee in the executive branch of 
        Government required by the President in an Executive 
        order or regulation, as a condition of access to 
        classified information, to provide consent, during a 
        background investigation and for such time as access to 
        the information is maintained, and for a period of not 
        more than three years thereafter, permitting access to 
        financial records, other financial information, 
        consumer reports, and travel records; and
            [(B)(i) there are reasonable grounds to believe, 
        based on credible information, that the person is, or 
        may be, disclosing classified information in an 
        unauthorized manner to a foreign power or agent of a 
        foreign power;
            [(ii) information the employing agency deems 
        credible indicates the person has incurred excessive 
        indebtedness or has acquired a level of affluence which 
        cannot be explained by other information known to the 
        agency; or
            [(iii) circumstances indicate the person had the 
        capability and opportunity to disclose classified 
        information which is known to have been lost or 
        compromised to a foreign power or an agent of a foreign 
        power.
    [(3) Each such request--
            [(A) shall be accompanied by a written 
        certification signed by the department or agency head 
        or deputy department or agency head concerned, or by a 
        senior official designated for this purpose by the 
        department or agency head concerned (whose rank shall 
        be no lower than Assistant Secretary or Assistant 
        Director), and shall certify that--
                    [(i) the person concerned is or was an 
                employee within the meaning of paragraph 
                (2)(A);
                    [(ii) the request is being made pursuant to 
                an authorized inquiry or investigation and is 
                authorized under this section; and
                    [(iii) the records or information to be 
                reviewed are records or information which the 
                employee has previously agreed to make 
                available to the authorized investigative 
                agency for review;
            [(B) shall contain a copy of the agreement referred 
        to in subparagraph (A)(iii);
            [(C) shall identify specifically or by category the 
        records or information to be reviewed; and
            [(D) shall inform the recipient of the request of 
        the prohibition described in subsection (b).
    [(b) Prohibition of Certain Disclosure.--
            [(1) If an authorized investigative agency 
        described in subsection (a) certifies that otherwise 
        there may result a danger to the national security of 
        the United States, interference with a criminal, 
        counterterrorism, or counterintelligence investigation, 
        interference with diplomatic relations, or danger to 
        the life or physical safety of any person, no 
        governmental or private entity, or officer, employee, 
        or agent of such entity, may disclose to any person 
        (other than those to whom such disclosure is necessary 
        to comply with the request or an attorney to obtain 
        legal advice or legal assistance with respect to the 
        request) that such entity has received or satisfied a 
        request made by an authorized investigative agency 
        under this section.
            [(2) The request shall notify the person or entity 
        to whom the request is directed of the nondisclosure 
        requirement under paragraph (1).
            [(3) Any recipient disclosing to those persons 
        necessary to comply with the request or to an attorney 
        to obtain legal advice or legal assistance with respect 
        to the request shall inform such persons of any 
        applicable nondisclosure requirement. Any person who 
        receives a disclosure under this subsection shall be 
        subject to the same prohibitions on disclosure under 
        paragraph (1).
            [(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).
    [(c)(1) Notwithstanding any other provision of law (other 
than section 6103 of the Internal Revenue Code of 1986), an 
entity receiving a request for records or information under 
subsection (a) shall, if the request satisfies the requirements 
of this section, make available such records or information 
within 30 days for inspection or copying, as may be 
appropriate, by the agency requesting such records or 
information.
    [(2) Any entity (including any officer, employee, or agent 
thereof) that discloses records or information for inspection 
or copying pursuant to this section in good faith reliance upon 
the certifications made by an agency pursuant to this section 
shall not be liable for any such disclosure to any person under 
this title, the constitution of any State, or any law or 
regulation of any State or any political subdivision of any 
State.
    [(d) Any agency requesting records or information under 
this section may, subject to the availability of 
appropriations, reimburse a private entity for any cost 
reasonably incurred by such entity in responding to such 
request, including the cost of identifying, reproducing, or 
transporting records or other data.
    [(e) An agency receiving records or information pursuant to 
a request under this section may disseminate the records or 
information obtained pursuant to such request outside the 
agency only--
            [(1) to the agency employing the employee who is 
        the subject of the records or information;
            [(2) to the Department of Justice for law 
        enforcement or counterintelligence purposes; or
            [(3) with respect to dissemination to an agency of 
        the United States, if such information is clearly 
        relevant to the authorized responsibilities of such 
        agency.
    [(f) Nothing in this section may be construed to affect the 
authority of an investigative agency to obtain information 
pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401 
et seq.) or the Fair Credit Reporting Act (15 U.S.C. 1681 et 
seq.).]

             REQUESTS BY AUTHORIZED INVESTIGATIVE AGENCIES

    Sec. 802. (a)(1) Any authorized investigative agency may 
request from any financial agency, financial institution, or 
holding company, or from any consumer reporting agency, such 
financial records, other financial information, and consumer 
reports as may be necessary in order to conduct any authorized 
law enforcement investigation, counterintelligence inquiry, or 
security determination. Any authorized investigative agency may 
also request records maintained by any commercial entity within 
the United States pertaining to travel by an employee in the 
executive branch of Government outside the United States.
    (2) Requests may be made under this section where--
            (A) the records sought pertain to a person who is 
        or was an employee in the executive branch of 
        Government required by the President in an Executive 
        order or regulation, as a condition of access to 
        classified information, to provide consent, during a 
        background investigation and for such time as access to 
        the information is maintained, and for a period of not 
        more than three years thereafter, permitting access to 
        financial records, other financial information, 
        consumer reports, and travel records; and
            (B)(i) there are reasonable grounds to believe, 
        based on credible information, that the person is, or 
        may be, disclosing classified information in an 
        unauthorized manner to a foreign power or agent of a 
        foreign power;
            (ii) information the employing agency deems 
        credible indicates the person has incurred excessive 
        indebtedness or has acquired a level of affluence which 
        cannot be explained by other information known to the 
        agency; or
            (iii) circumstances indicate the person had the 
        capability and opportunity to disclose classified 
        information which is known to have been lost or 
        compromised to a foreign power or an agent of a foreign 
        power.
    (3) Each such request--
            (A) shall be accompanied by a written certification 
        signed by the department or agency head or deputy 
        department or agency head concerned, or by a senior 
        official designated for this purpose by the department 
        or agency head concerned (whose rank shall be no lower 
        than Assistant Secretary or Assistant Director), and 
        shall certify that--
                    (i) the person concerned is or was an 
                employee within the meaning of paragraph 
                (2)(A);
                    (ii) the request is being made pursuant to 
                an authorized inquiry or investigation and is 
                authorized under this section; and
                    (iii) the records or information to be 
                reviewed are records or information which the 
                employee has previously agreed to make 
                available to the authorized investigative 
                agency for review;
            (B) shall contain a copy of the agreement referred 
        to in subparagraph (A)(iii);
            (C) shall identify specifically or by category the 
        records or information to be reviewed; and
            (D) shall inform the recipient of the request of 
        the prohibition described in subsection (b).
    (b) Notwithstanding any other provision of law, no 
governmental or private entity, or officer, employee, or agent 
of such entity, may disclose to any person, other than those 
officers, employees, or agents of such entity necessary to 
satisfy a request made under this section, that such entity has 
received or satisfied a request made by an authorized 
investigative agency under this section.
    (c)(1) Notwithstanding any other provision of law (other 
than section 6103 of the Internal Revenue Code of 1986), an 
entity receiving a request for records or information under 
subsection (a) shall, if the request satisfies the requirements 
of this section, make available such records or information 
within 30 days for inspection or copying, as may be 
appropriate, by the agency requesting such records or 
information.
    (2) Any entity (including any officer, employee, or agent 
thereof) that discloses records or information for inspection 
or copying pursuant to this section in good faith reliance upon 
the certifications made by an agency pursuant to this section 
shall not be liable for any such disclosure to any person under 
this title, the constitution of any State, or any law or 
regulation of any State or any political subdivision of any 
State.
    (d) Any agency requesting records or information under this 
section may, subject to the availability of appropriations, 
reimburse a private entity for any cost reasonably incurred by 
such entity in responding to such request, including the cost 
of identifying, reproducing, or transporting records or other 
data.
    (e) An agency receiving records or information pursuant to 
a request under this section may disseminate the records or 
information obtained pursuant to such request outside the 
agency only--
            (1) to the agency employing the employee who is the 
        subject of the records or information;
            (2) to the Department of Justice for law 
        enforcement or counterintelligence purposes; or
            (3) with respect to dissemination to an agency of 
        the United States, if such information is clearly 
        relevant to the authorized responsibilities of such 
        agency.
    (f) Nothing in this section may be construed to affect the 
authority of an investigative agency to obtain information 
pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401 
et seq.) or the Fair Credit Reporting Act (15 U.S.C. 1681 et 
seq.).

                            Dissenting Views

    We oppose H.R. 3845, which unnecessarily weakens America's 
counter-terrorism laws and impairs our intelligence-gathering 
capabilities. This legislation is nothing more than change for 
the sake of change. The majority has seen fit to defy the Obama 
Administration's call for full reauthorization of the Act's 
expiring provisions and instead placate extreme liberal 
interest groups that have decried the very existence of the USA 
PATRIOT Act since its enactment in 2001.
    To be sure, the majority espouses reforms to our foreign 
intelligence or criminal laws, claiming such reforms are needed 
to prevent the abuse or misuse of these laws. Such claims are 
hollow and without merit. Not only has the majority failed to 
provide evidence of the government's misuse or abuse of many of 
these provisions, they offer no explanation for how their 
proposed reforms will correct any such supposed misuse. It is 
apparent that they are not even certain how their legislation 
will affect the use of these laws.
    With every ``change for the sake of change'' this bill 
makes, the majority threatens the ongoing and critical 
collection of foreign intelligence and risks empowering radical 
jihadists, terrorists, and spies to ramp up their efforts to 
attack the United States. This legislation also signals to the 
courts that Congress urges a different interpretation of these 
provisions, but with little to no guidance as to what ill 
Congress seeks to cure. This is a dangerous risk to take with 
our foreign intelligence laws--laws that should only be amended 
when absolutely necessary.

              TITLE I--USA PATRIOT ACT RELATED AMENDMENTS

Roving Wiretaps
    Section 101, as introduced, requires the government to 
include additional information in applications to the Foreign 
Intelligence Surveillance Court (``FISC'')for orders that 
authorize wiretap surveillance of a foreign intelligence 
target. In cases where the identity of the target of the 
surveillance order is unknown, the government must provide 
additional information ``sufficient to allow a judge to 
determine that the target is a single individual.''
    Liberal interest groups have taken issue with so-called 
``John Doe'' surveillance orders. In testimony before the 
Constitution Subcommittee, the ACLU wrote that the authority 
gave law enforcement officials ``an inappropriate level of 
discretion'' because it ``does not require the government to 
name the target, or to make sure its roving wiretaps are 
intercepting only the target's communications.'' The ACLU 
further argues that roving wiretaps should have the same fourth 
amendment warrant requirements as Title III criminal wiretaps.
    This assertion fails to acknowledge the key differences 
between the two investigative tools. Title III wiretaps are 
used to investigate Federal crimes, while Foreign Intelligence 
Surveillance Act (``FISA'') wiretaps are used in national 
security and foreign intelligence investigations. Moreover, the 
wiretaps rely on two different probable cause standards (e.g., 
with FISC court orders, the ``probable cause'' showing is not 
of criminal activity, but of a connection between that target 
and a ``foreign power'').
    We note that the provision, as introduced, does not go as 
far as to align the requirements of FISC court orders with 
those of Title III (criminal) wiretaps, but the language will 
require law enforcement officials to clear a higher evidentiary 
bar than that of current law. This new language is troublesome 
as it adds, for no demonstrated reason, additional burdens to 
the already substantial list of requirements for obtaining a 
FISC court order for these important tools.
    The manager's amendment offered by Chairman Conyers 
corrects what we can only presume was a significant drafting 
error in the roving wiretap provision. In an attempt to address 
the misperceived ``John Doe'' roving wiretap, the underlying 
bill actually limits all FISA surveillance to a single 
individual target. This is unworkable because FISA authorizes, 
among other things, the surveillance of ``foreign powers,'' 
which presumably involve much more than a single individual.
    The manager's amendment applies this limitation just to the 
roving wiretap provision and not all electronic surveillance. 
But even this language attempts to solve a problem that does 
not exist and for which no factual record has been developed. 
As with so many provisions in this bill, the change to the 
roving wiretap provision is change for the sake of change.
FISA Business Records
            Standard
    Section 103, as introduced, reverts back to the pre-9/11 
standard of ``specific and articulable facts,'' which proved 
cumbersome for the intelligence community's use of this and 
other provisions with the same standard. Current law already 
imposes significant requirements on the government in its 
applications for business records in national security and 
terrorism cases. The government must submit a statement of 
facts showing reasonable grounds to believe that the business 
records sought are relevant to an authorized investigation.
    More importantly, we know that business records authority 
has been used to support important and highly sensitive 
intelligence collection operations. And we also know that by 
returning to a specific and articulable standard, we risk 
terminating or significantly curtailing these operations.
    Increasing the standard to require ``specific and 
articulable facts'' will not, as the majority asserts, provide 
additional civil liberties protections to Americans. Current 
law already protects the free speech rights of Americans by 
preventing the use of this authority solely on the basis of 
activities protected by the first amendment. Such a standard 
will, however, provide greater protection to terrorists or 
spies by limiting the government's use of this authority.
    We are pleased that Mr. Schiff offered an amendment to 
remove the specific and articulable facts standard and we 
supported this improvement to the bill. However, Mr. Schiff's 
amendment went further to delete a provision in current law 
instructing that business records sought by the government are 
presumptively relevant if the government shows that the records 
sought pertain to: (a) a foreign power or an agency of a 
foreign power; (b) the activities of a suspected agent of a 
foreign power who is the subject of such an authorized 
investigation; or (c) an individual in contact with, or known 
to, an agent of a foreign power who is the subject of such 
authorized investigation.
    Although we appreciate Mr. Schiff's intent to reach a 
compromise for the business records standard, his amendment 
sought to remove a provision without a full understanding of 
the consequences. We received no testimony or other evidence 
that the presumption of relevance is the source of any 
malfeasance with business records orders. Nor are we aware of 
how removing this presumption corrects any perceived misuse of 
these court orders. And we know that the affected Executive 
Branch agencies did not have an opportunity to weigh in on this 
important question.
    For these reasons, Mr. Lungren offered a second-degree 
amendment to maintain the current presumption of relevance. We 
indicated to the majority that if they accepted Mr. Lungren's 
amendment, we would support Mr. Schiff's amendment. The 
majority declined and opposed Mr. Lungren's amendment. 
Therefore, despite our support for removing the specific and 
articulable facts standard, we were forced to oppose Mr. 
Schiff's amendment due the unnecessary and unjustified removal 
of the presumption of relevance.
            Library and Bookseller Records
    As introduced, section 103 exempts library patron lists and 
book customer lists from the universe of ``tangible things'' 
for which a business record order may be sought. The bill also 
prohibits any application for records of ``a bookseller or 
library documentary materials that contain personally 
identifiable information concerning a patron of a bookseller or 
library.''
    The bill broadly defines ``bookseller'' as ``any person or 
entity engaged in the sale, rental or delivery of books, 
journals, magazines, or other similar forms of communication in 
print or digitally.'' The bill also broadly defines the terms 
``personally identifiable information'' and ``documentary 
materials.''
    This prohibition is completely unnecessary and creates a 
safe-haven for terrorists to utilize America's libraries, 
bookstores, and websites to research and study bomb-making or 
other dangerous topics.
    The manager's amendment replaces this outright prohibition 
with the heightened standard of ``specific and articulable 
facts'' for library and bookseller records. This change, 
however, is still unacceptable.
    The 2005 USA PATRIOT Act reauthorization provided 
heightened protections for library and bookstore business 
records. Applications for orders seeking library circulation 
records, library patron lists, book sales records, and book 
customer lists may only be approved by the Director of the 
Federal Bureau of Investigation, the Deputy Director of the 
Federal Bureau of Investigation, or the Executive Assistant 
Director for National Security. And this authority cannot be 
further delegated. And business records orders--which are 
issued by the FISC--can only be accessed as part of a foreign 
intelligence, international terrorism, or clandestine 
intelligence investigation.
    Moreover, as noted above, the business records provision 
currently protects the free speech rights of Americans by 
preventing the use of this authority solely on the basis of 
activities protected by the first amendment. The majority 
continues to operate under the misguided notion that library 
and bookseller records are of particular interest to Federal 
investigators. There is simply no evidence to support this 
belief and therefore no justification for imposing a heightened 
standard for library or bookseller records.
    Mr. Gallegly offered an amendment to strike the portion of 
the manager's amendment that creates a heightened standard for 
library and bookseller business records, which the majority 
rejected.
            Conclusive Treatment
    Section 103 also eliminates the current requirement that 
the FISC treat as conclusive the government's certification 
that disclosure may endanger the national security of the 
United States or interfere with diplomatic relations, unless 
the court finds that such certification was made in bad faith.
    By striking the conclusive treatment provision, the 
majority is instructing the FISC to afford no weight to the 
government's certification. This, despite the fact that Federal 
courts have long recognized that the President and the 
Executive Branch, as the experts on national security and 
foreign intelligence information, must be afforded deference in 
their determinations that the disclosure of certain information 
may endanger America.
    ``[C]ourts traditionally have been reluctant to intrude 
upon the authority of the Executive in . . . national security 
affairs,''\1\ and the Supreme Court has acknowledged that 
terrorism may provide the basis for arguments ``for heightened 
deference to the judgments of the political branches with 
respect to matters of national security.''\2\
---------------------------------------------------------------------------
    \1\Department of Navy v. Egan, 484 U.S. 518, 530 (1988).
    \2\Zadvydas v. Davis, 533 U.S. 678, 696 (2001).
---------------------------------------------------------------------------
    Last December, the Second Circuit Court of Appeals issued a 
decision in Doe v. Mukasey\3\ relating to the nondisclosure 
provision of certain National Security Letters. Like business 
records, National Security Letters afford conclusive treatment 
of the government's certification that disclosure may endanger 
the national security of the United States or interfere with 
diplomatic relations.
---------------------------------------------------------------------------
    \3\549 F.3d 861 (2nd Cir. 2008)
---------------------------------------------------------------------------
    In Doe, the court held this conclusive treatment of NSL 
nondisclosure unconstitutional as inconsistent with strict 
scrutiny standards for a content-based prior restraint on first 
amendment protected speech. However, the court did not find 
that in the absence of conclusive treatment, there should be no 
weight afforded the government's certification.
    On the contrary, the court continued to acknowledge the 
precedents that a level of deference must still be afforded the 
Executive Branch's assessment of dangers posed to national 
security by disclosure of a National Security Letter.\4\ The 
same holds true for business records orders.
---------------------------------------------------------------------------
    \4\Id. at 881.
---------------------------------------------------------------------------
    For this reason, Mr. Lungren offered an amendment to 
instruct the FISC to afford ``substantial weight'' to the 
government's certification. Despite the substantial number of 
long-standing precedents requiring courts to provide deference 
to the Executive Branch on national security matters, we were 
concerned that the FISC would interpret the removal of 
conclusive treatment with no standard in its stead as Congress' 
intent that no deference be afforded the government for the 
purposes of business record non-disclosure.
    The Supreme Court has repeatedly afforded even greater 
deference than the ``substantial weight'' called for in Mr. 
Lungren's amendment. ``The Court also has recognized `the 
generally accepted view that foreign policy was the province 
and responsibility of the Executive. As to these areas of 
Article II duties the courts have traditionally shown the 
utmost deference to Presidential responsibilities.'''\5\
---------------------------------------------------------------------------
    \5\Egan, 484 U.S. at 529-30 (citations omitted).
---------------------------------------------------------------------------
    Despite this well-established rule, the majority opposed 
Mr. Lungren's amendment--a potential signal to the FISC that 
Congress intends no deference whatsoever even though Executive 
Branch officials are entitled to deference because they have 
awareness of the full scope of intelligence and investigative 
information concerning the matter for which the information is 
sought.
Sunset of Lone Wolf
    Section 104 of the bill repeals the so-called ``lone wolf'' 
provision, which is set to expire on December 31, 2009. Section 
6001 of the Intelligence Reform and Terrorism Prevention Act of 
2004 (IRTPA) amended the definition of ``agent of a foreign 
power'' in FISA (50 U.S.C. Sec. 1801(b)) to include the ``lone 
wolf'' definition. This definition allows the government to 
surveil a non-U.S. person who is engaging in international 
terrorism or activities in preparation of international 
terrorism even if that target is not a foreign power or an 
agent of a foreign power.
    FISA was originally enacted in 1978 to address surveillance 
of ``foreign powers'' and ``agents of a foreign power.'' In 
1978, America was in the midst of the Cold War, and Congress' 
primary concern was authorizing the surveillance of foreign 
powers, such as the Soviet Union, and their agents.
    Congress modernized FISA in 2004 to apply to a lone-wolf 
terrorist following the terrorist attacks of 9/11 faced with 
the stark reality that our enemies had changed. No longer were 
we concerned simply with foreign governments, but also with 
illusive and often anonymous terrorists spread throughout the 
world who may not fit the definition of ``agent of a foreign 
power'' as written in 1978.
    To date, the government has never acknowledged use of this 
provision. The majority relies upon this as justification to 
let the provision expire. These authorities were enacted after 
9/11 to fill gaps in the law. The fact that this particular gap 
was closed may have deterred a lone terrorist from attacking 
within this country since the provision was enacted.
    It would be short-sighted to limit the government's ability 
to monitor an individual foreign terrorist who is working alone 
within the United States. It is not so hard to imagine a 
terrorist who might break away from al-Qaeda for ideological 
reasons and set out to commit terrorist acts on their own.
    There is no reason why our intelligence gathering tools 
should not be used against terrorists seeking to attack our 
country simply because they are not known to be affiliated with 
a terrorist organization. It makes no sense to allow these 
individual terrorists who seek to kill Americans to slip 
through the cracks simply because they are not outwardly 
associated with al-Qaeda or another terrorist organization.
    Ranking Member Smith offered an amendment to strike the 
repeal of section 6001 and extend the sunset of the lone wolf 
provision to December 31, 2013. This amendment failed on a tie 
vote.
    In rejecting Mr. Smith's amendment, the majority argued 
that the government can use Title III criminal wiretaps to 
monitor terrorists. However, criminal wiretaps are ill-suited 
for use in intelligence operations. First, once criminal 
proceedings are instigated, the sixth amendment provides a 
criminal defendant with the right to a public trial, to be 
confronted with the witnesses against him, and to present 
relevant evidence in his defense.\6\ In some prosecutions, 
particularly terrorism and espionage prosecutions, the 
defendant's presentation of evidence in a public trial may risk 
the national security of the United States.
---------------------------------------------------------------------------
    \6\U.S. Const. amend VI.
---------------------------------------------------------------------------
    Moreover, FISA wiretaps are used to collect foreign 
intelligence information that is highly classified, generally 
used for purposes other than a criminal trial, and not intended 
to be given to the target. Further, FISA protects the sources 
and methods of the government surveillance; this is information 
that criminal wiretaps do not protect. Gathering intelligence 
through the use of a criminal wiretap could tip off the 
terrorists to the strategies we use to track terrorists and 
intercept them before they strike.
    The majority contends that all of these concerns are 
addressed by the Classified Information Procedures Act 
(CIPA).\7\ CIPA ``provides pretrial procedures that will permit 
the trial judge to rule on questions of admissibility involving 
classified information before introduction of the evidence in 
open court.''\8\ These procedures are intended to provide a 
means for the court to determine whether classified information 
is actually material to the defense.
---------------------------------------------------------------------------
    \7\P.L. 96-456, codified at 18 U.S.C. app. 3 Sec. 1-16.
    \8\S. Rept. 96-823, at 1.
---------------------------------------------------------------------------
    Despite the majority's contention, CIPA is an inadequate 
alternative to FISA. First, foreign intelligence surveillance 
orders are approved by the FISC, which is comprised of 11 
Federal district judges with an expertise in and extensive 
knowledge of the government's intelligence-collection 
operations. It was Congress' prerogative when it adopted FISA 
in 1978 that this subset of Federal judges be designated by the 
Chief Justice to serve on the FISC. Now the majority seeks to 
depart from Congress' intent and open-up the approval of these 
highly-sensitive orders to any and all Federal district court 
judges for lone terrorist investigations.
    Second, CIPA is relevant only once criminal charges have 
been brought against a defendant. It is intended to provide 
uniform procedures for determining the admissibility of 
evidence on a case-by-case basis. This creates two 
uncertainties: (1) whether foreign intelligence information 
collected against a lone terrorist remain secure in the interim 
between collection and the commencement of criminal 
proceedings, if any; and (2) whether CIPA will be appropriately 
applied in each instance to protect the disclosure of 
classified information.
    Although CIPA is useful for protecting classified 
information once a criminal proceeding has commenced, it and 
Title III wiretaps are a poor substitute to foreign 
intelligence collection under FISA.
    Criminal wiretaps also require ``live minimization'' to 
ensure that the government does not gather evidence on 
protected activities. Live minimization is nearly impossible in 
foreign intelligence collection because most of the information 
captured by FISA wiretaps is in a foreign language. It is 
recorded live, but later translated by linguists at 
intelligence agencies. Under the Title III process, it would be 
nearly impossible for the government to engage in ``live 
minimization'' of predominantly foreign language information.
Delayed-Notice Search Warrants
    Current law codifies the court's ability to delay the 
notice to the target of a search if it finds that notice 
``may'' have an adverse result. Under 18 U.S.C. Sec. 3103a, 
notice of a search warrant may be delayed if the issuing court 
finds reasonable cause to believe that providing immediate 
notification of the execution of the warrant may have the 
adverse result of (1) endangering the life or physical safety 
of an individual; (2) flight from prosecution; (3) destruction 
of or tampering with evidence; or (4) intimidation of potential 
witnesses.\9\ In some circumstances, the statute further allows 
the court to delay notification if such notification would 
seriously jeopardize an investigation or unduly delay a trial.
---------------------------------------------------------------------------
    \9\18 U.S.C. Sec. Sec. 3103a(b)(1); 2705(a)(2).
---------------------------------------------------------------------------
    Section 106 of this bill changes the standard for delayed 
notice from ``may'' to ``will'' have an adverse result. This 
change begs the question of how a court could ever determine 
that an adverse result ``will'' result unless notification is 
already delayed. The answer is it won't. Although Federal 
judges are very able and intelligent, they do not have the 
ability to accurately foresee the future. This legislation 
ignores that reality and would require the court to make a 
conclusive finding about the future. This requirement is based 
on an unattainable standard that will cripple the use of a 
decades-old, constitutional authority.
    In 1979, the U.S. Supreme Court expressly held in Dalia v. 
United States that the fourth amendment does not require law 
enforcement to give immediate notice of the execution of a 
search warrant.\10\ Three Federal courts of appeals had 
considered the constitutionality of delayed-notice search 
warrants since 1979 and upheld their constitutionality.\11\ The 
USA PATRIOT Act codified the process for use of delayed notice 
search warrants, ensuring that notice may not be delayed 
indefinitely. The proposed changes in this bill revise these 
provisions to make them unduly burdensome to the government and 
the court.
---------------------------------------------------------------------------
    \10\See Dalia v. United States, 441 U.S. 238 (1979); see also Katz 
v. United States, 389 U.S. 347 (1967).
    \11\April 4, 2005 U.S. Department of Justice letter to Senator 
Specter. p. 3 citing United States v. Freitas, 800 F.2d 1451 (9th Cir. 
1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); United 
States v. Simons, 206 F.3d 392 (4th Cir. 2000).
---------------------------------------------------------------------------
    As introduced, section 106 also eliminates the court's 
ability to delay notification if such notification would 
seriously jeopardize an investigation or unduly delay a trial. 
Of particular concern is the ``seriously jeopardizing an 
investigation'' justification. Federal agents investigating a 
terrorism case may have grounds to conduct a search of a 
suspect's home, office, storage unit, or other place, but not 
be prepared to bring an indictment or arrest the suspect.
    It is also very likely that there is no evidence to suggest 
that this suspect will (1) endanger the life or physical safety 
of an individual, (2) flee from prosecution, (3) destroy or 
tamper with evidence, or (4) intimidate a witness. But that 
doesn't mean that we want to alert a terrorist to the fact that 
he is being investigated. Eliminating the ``seriously 
jeopardizing an investigation'' as a reason for delaying 
notification could force law enforcement agents to alert a 
terrorist to the fact that he is the subject of an 
investigation.
    Mr. Issa offered an amendment to strike section 106. The 
majority sought an opportunity to discuss a compromise with Mr. 
Issa, and he withdrew his amendment. Mr. Issa offered a second 
amendment to reinstate the ``may'' standard and authorize the 
court to approve of delayed notice if the court finds that such 
a delay ``is likely to'' seriously jeopardize an investigation 
or unduly delay a trial. While this is a significant step 
towards maintaining the integrity of delayed-notice search 
warrants, we will seek the input of the Justice Department on 
the ``is likely to'' standard before the bill is considered on 
the House floor and we hope the majority will be willing to 
make changes that may be sought by the Administration.
    Despite this small step towards compromise, the Majority 
took no further steps to limit the additional damage this 
legislation wreaks upon the statute as currently written. 
Section 106 still amends the provision that requires that 
notice of a delayed search warrant be given within a reasonable 
period. Under current law, the government must inform the 
target of the search within thirty days. This legislation only 
allows seven days.
    Lastly, section 106 still amends the provision that allows 
the government to extend the period of delay in notifying the 
target of the search, if there is a need to do so. Under 
current law, the government may show cause to the court that 
the facts of the case necessitate further delay, for up to 
ninety days. This legislation mandates that the United States 
Attorney (and not a designee) for the district in which an 
extension order is sought make a written application to the 
court for further delays of not more than twenty-one days. 
Also, the court can only grant the application if it once again 
looks into the future and makes a finding that the extended 
delay is necessary because notice to the target of the search 
will result in (1) endangering the life or physical safety of 
an individual; (2) flight from prosecution; (3) destruction of 
or tampering with evidence; or (4) intimidation of potential 
witnesses.
    The changes to this authority create substantial new 
burdens for law enforcement officials to overcome if they wish 
use delayed notice search warrants. The section also unduly 
limits the court's discretion in granting or extending delayed 
notice warrants. All of this is done without any evidence of 
past abuse of this limited authority. Section 106 is the very 
definition of change for the sake of change.
Criminal Pen Register and Trap and Trace Devices
    The criminal code has provided Federal law enforcement 
agencies with the authority to use pen registers and trap and 
trace devices since 1986. The code also authorizes State and 
local law enforcement officers to make an application to a 
State court for use of these tools in State criminal 
investigations, where authorized.
    The current standard for a pen register is that ``the 
information likely to be obtained is relevant to an ongoing 
criminal investigation by that agency.'' As introduced, section 
107 amended the standard to require a ``statement of `specific 
and articulable facts' by the applicant to justify the belief 
of the applicant that the information likely to be obtained is 
relevant to an ongoing criminal investigation being conducted 
by that agency.''
    The underlying bill unnecessarily elevates the standard for 
criminal pen registers and trap and trace devices. There is no 
evidence of any abuse of this criminal authority and therefore 
there was no reason to amend this provision at all, and 
certainly not in a reauthorization of the USA PATRIOT Act.
    Use of a pen register or trap and trace device is not a 
search under the fourth amendment because the devices do not 
allow the collection of any content. As the Supreme Court noted 
in 1979, ``Indeed, a law enforcement official could not even 
determine from the use of a pen register whether a 
communication existed. These devices do not hear sound. They 
disclose only the telephone numbers that have been dialed--a 
means of establishing communication. Neither the purport of any 
communication between the caller and the recipient of the call, 
their identities, nor whether the call was even completed is 
disclosed by pen registers.''\12\
---------------------------------------------------------------------------
    \12\Smith v. Maryland, 442 U.S. 735, 741 (1979) (citations 
omitted).
---------------------------------------------------------------------------
    For reasons beyond our understanding, the bill and the 
manager's amendment apply these proposed changes to all 
Federal, State, and local criminal investigations--well beyond 
the limited scope of FISA. The majority initially ignored the 
strong opposition of the National District Attorneys 
Association, the National Sheriffs' Association, the Fraternal 
Order of Police, and the International Association of Chiefs of 
Police, all of whom agreed that the proposed changes to 
criminal pen register and trap and trace devices would unduly 
burden State and local law enforcement agencies that regularly 
use these tools in State criminal investigations.
    In an effort to preserve this long-standing investigative 
tool, Mr. Rooney offered an amendment to strike section 107 
from the bill. The amendment was rejected by many of our 
colleagues in the majority and was ultimately defeated. 
However, a scant time later, Mr. Schiff offered an amendment 
to, inter alia, strike the section. In a remarkable turnaround, 
this amendment received the support of the majority and was 
approved. While we certainly do not approve of this method of 
legislating, we do approve of this final result.
FISA Pen Register and Trap and Trace Devices
    Section 108, as introduced, amends the FISA pen register/
trap and trace (PR/TT) standard to require ``a statement of the 
specific and articulable facts relied upon by the applicant to 
justify the belief of the applicant that the information likely 
to be obtained is foreign intelligence information not 
concerning a United States person or is relevant to an ongoing 
investigation to protect against international terrorism or 
clandestine intelligence activities . . .''
    Current law already imposes significant burdens on the 
government in its efforts to obtain pen registers in national 
security and terrorism cases. The government must already 
obtain court approval and certify that the information sought 
is foreign intelligence information or is relevant to an 
investigation to protect against terrorism.
    Pen registers and trap and trace devices are not wiretaps. 
These tools cannot be used to collect the content of 
communications. FISA's PR/TT authority also explicitly 
safeguards first amendment rights. It requires that any 
``investigation of a United States person is not conducted 
solely upon the basis of activities protected by the first 
amendment to the Constitution.''
    Mr. Rooney offered an amendment to strike the heightened 
standard of specific and articulable facts from this section. 
We are pleased that the majority realized the significant 
limitations such a standard would place on the use of FISA PR/
TT authority and approved Mr. Rooney's amendment.
    Section 108, as introduced, also requires a PR/TT 
application to include a statement of proposed minimization 
procedures and requires the court to find that such procedures 
meet the definition. Minimization procedures are intended to 
limit the retention, and regulate the dissemination, of non-
publicly available information concerning unconsenting U.S. 
persons, consistent with the need of the United States to 
obtain, produce, and disseminate foreign intelligence 
information. These procedures have traditionally been applied 
to criminal and FISA wiretaps, but in recent years were also 
applied to FISA business records orders.
    Unlike with other minimization procedures in national 
security law, these procedures are unnecessary and unworkable, 
as pen register information by definition does not contain 
content. Under Federal law, information collected ``shall not 
include the contents of any communication.''
    The manager's amendment offered by Chairman Conyers 
attempts to curb the breadth of PR/TT minimization by limiting 
its application to ``extraordinary circumstances.'' Although 
this revised language narrows the instances in which the FISC 
may require minimization, the bill still requires the 
government to submit minimization procedures in every PR/TT 
application. This is extremely burdensome and unnecessary 
without any justification in the scant factual record developed 
by the Committee for such an important piece of legislation.
    The changes in the manager's amendment do not resolve the 
overarching questions of (1) whether the government can even 
apply minimization procedures to PR/TT data; (2) how burdensome 
such a requirement will be the use of this tool; (3) has there 
been abuse or misuse of PR/TT authority and would any such 
misuse actually be corrected or alleviated through 
minimization? Congress should not revise FISA PR/TT authority 
without the answers to these questions.
Public Reporting on FISA
    Section 6002 of IRTPA directs the Attorney General to 
provide semi-annual reports to the House and Senate 
Intelligence and Judiciary Committees providing, in part, the 
``aggregate number of persons targeted for orders issued under 
FISA, including a breakdown of (1) electronic surveillance, (2) 
physical searches, (3) pen registers, (4) business record 
orders, (5) acquisitions inside the U.S. of persons located 
outside the U.S., and (6) other acquisitions targeting U.S. 
persons outside the U.S.
    Section 109 of the bill requires the Attorney General to 
make this information publicly available. This is yet another 
attempt by the majority to ``declassify'' sensitive, national 
security information. There is no need to make such reports 
public. First, this change is unnecessary for Congress' 
oversight purposes. The committees of jurisdiction already 
receive bi-annual classified reports under this requirement. 
Second, this information is classified and the authority to 
declassify information rests with the President, not Congress. 
Congress cannot circumvent this reality simply by dictating 
public release of classified information in a statute. Third, 
the amendment requires the carte blanche release of all 
information in the bi-annual reports with no regard as to 
whether such information should be divulged or to what extent. 
Declassifying this information does not just make it available 
to the American people. It makes it available to our enemies as 
well.
    It would be careless of Congress, under the guise of 
transparency, to require the public reporting of highly 
classified information. To this end, Mr. Coble offered an 
amendment to strike section 109. After receiving assurances 
from Chairman Conyers that we would work in a bipartisan 
fashion with the Justice Department to determine what, if any, 
information can be released publicly, Mr. Coble withdrew his 
amendment. We will work with the majority before the bill comes 
before the full House to resolve this substantively and 
constitutionally defective provision.

               TITLE II--NATIONAL SECURITY LETTER REFORM

Sunset
    Section 202 sunsets current national security letter 
authority on December 31, 2013, with the effect of returning 
the relevant national security letter statutes to their pre-9/
11 standard ((1) relevant to an authorized investigation, and 
(2) that the FBI had specific and articulable facts giving 
reason to believe that information requested pertained to a 
foreign power or agent of a foreign power, such as a terrorist 
or a spy)). Through an audit covering the years 2003 to 2005, 
inaccuracies were found in records related to the issuance and 
reporting of NSLs and violations of procedures in place to 
govern the issuance, use, and oversight of NSLs. This naturally 
caused great concern in Congress and at the highest level of 
the FBI evoking efforts to correct and better oversee the use 
of this important law enforcement tool.
    It would be understandable if the purpose of the sunset 
were to provide leverage to demand accountability and give 
Congress oversight. However, indications by the majority appear 
to reflect a desire to actually return to the old standard--
requiring `specific and articulable facts' that the information 
pertained to a foreign government, terrorist, or spy. This 
prior standard prevented investigators from acquiring records 
that were relevant to an ongoing international terrorism or 
espionage investigation. It makes no sense to roll back the 
2001 reforms for NSLs. Criminal investigators have long been 
able to use grand jury subpoenas to obtain many of the same 
records so long as they are relevant to their investigation. 
Why should we have a more stringent standard for national 
security investigations?
Standard
    Section 204 of the bill requires an official with authority 
to issue a national security letter to document and retain, in 
a separate writing, a statement of ``specific and articulable 
facts'' showing that there are reasonable grounds to believe 
that the information sought pertains to a foreign power or 
agent of a foreign power.
    This standard effectively changes the focus of the 
``relevance'' required under current law from ``relevant to an 
authorized investigation'' to ``pertaining to'' a ``foreign 
power or agent of a foreign power.'' In addition, current law 
does not directly couple the relevance standard with ``specific 
and articulable'' facts as support for relevance--thus creating 
a more exacting standard for the government to meet which will 
inevitably limit the scope of information that the government 
can seek even if it is related to an authorized national 
security investigation. This requirement keeps the FBI from 
using NSLs to develop evidence at the early stages of an 
investigation, when they are the most useful, that can be used 
to establish links between terrorists, terrorist funding 
support, or those engaged in espionage, because it has not yet 
been established that they are related to a foreign power or an 
agent of a foreign power.
    By requiring a separate writing documenting specific and 
articulable facts that information sought pertains to a foreign 
power or agent of a foreign power, it effectively rolls back 
the standard for NSLs to the pre-USA PATRIOT Act standard 
without explicitly doing so in the NSL certification to the NSL 
recipient. Current law also does not require the government to 
create and maintain a record of such facts at the time the 
national security letter is issued.
    National Security Letters are similar to administrative 
subpoenas, which almost universally require only a showing of 
relevance to the particular investigation; thus the change to 
the NSL standard in the original USA PATRIOT Act.
    Mr. Chaffetz offered an amendment to strike section 204, 
but it was rejected by the majority. We find it ironic that the 
majority insists upon a heightened standard for foreign 
intelligence and terrorism investigations, yet just recently 
overwhelmingly approved a significantly lower standard for 
certain health care investigations. Section 1640 of H.R. 3962, 
the Affordable Health Care for America Act, allows the 
Department of Health and Human Services to issue administrative 
subpoenas to insurance companies during investigations of 
decisions to exclude benefits.
    The standard for issuing an administrative subpoena under 
H.R. 3962 is extremely low. The information sought must simply 
``relate to'' the matter under investigation--a standard well 
below the current relevance standard for NSLs and most 
administrative subpoenas. It is important for the American 
people to understand this distinction. The majority wants to 
make it easier for the government to investigate insurance 
companies than to investigate terrorists plotting to kill 
Americans.
Disclosure for Law Enforcement Purposes
    Section 206 requires the Attorney General to authorize the 
use of any information acquired or derived from a national 
security letter in a criminal proceeding. For reasons beyond 
our comprehension, the majority appears to believe that the 
third-party records obtained through a NSL in a counter-
terrorism or intelligence investigation should not be used in a 
terrorism or espionage trial. Why does the majority want to 
hinder the prosecution of terrorists and spies? Current law 
does not require such authorization for NSLs because the 
information obtained through NSLs, like the information 
obtained through a grand jury or administrative subpoena, is 
entirely admissible in a criminal trial.
    The manager's amendment amends section 206 to allow the 
Attorney General to delegate this disclosure authority to other 
officials, but only one that has attained the rank of Section 
Chief of a division of the Department of Justice. The amendment 
also deletes language that would have required such 
authorization for the use of any information derived from a 
NSL.
    These changes do little to alleviate the devastating 
effects of this provision. Perhaps the single most important 
lesson of 9/11 was the importance of allowing our law 
enforcement and national security investigators to share 
information in order to detect and stop terrorists before they 
strike.
    This section creates administrative hurdles that make it 
much more difficult for intelligence agents to share 
information they obtained via a national security letter with 
their law enforcement brethren. By creating these extra steps 
for approving disclosure of certain information, the Committee 
will likely ensure that national security agents will avoid the 
hassle of the disclosure process.
    When Congress passed the USA PATRIOT Act, we recognized 
that artificial legal walls between these criminal and national 
security agents, whether real or perceived, were an impediment 
to effective criminal and national security investigations.
    For more than eight years, Members of Congress have 
reiterated that effective and timely information sharing is 
critical to effective investigations, even among investigators 
and prosecutors with seemingly divergent missions. Congress has 
demanded nothing less than complete and open information 
sharing between such investigations to protect the American 
people and prevent another event like the 9/11 attacks.
    Despite this consistent mandate since 9/11, the majority 
now seems intent upon sending the opposite message and is 
demanding that law enforcement officials once again erect 
internal walls that compartmentalize information gathered from 
counterterrorism and counterintelligence investigations from 
use in criminal investigations or proceedings.
Judicial Review of National Security Letter Nondisclosure Order
    Section 207 establishes additional procedures for a 
recipient to seek judicial review of a nondisclosure 
requirement imposed in connection with a national security 
letter. If the recipient wishes to have a court review a 
nondisclosure requirement, the recipient must notify the 
government. Not later than thirty days after the receipt of 
notification, the government must apply for a court order 
prohibiting the disclosure of information about the national 
security letter or the existence of the national security 
letter.
    The nondisclosure requirement remains in effect during the 
pendency of any judicial review proceedings. The government's 
application for a nondisclosure order must include a 
certification from the Attorney General, Deputy Attorney 
General, or the Director of the FBI (or the head of another 
agency if not part of DOJ) containing a statement of specific 
and articulable facts indicating that disclosure may result in 
a danger to the national security of the United States, 
interference with a criminal, counterterrorism, or 
counterintelligence investigation, interference with diplomatic 
relations, or danger to the life or physical safety of any 
person. If a court determines that there is reason to believe 
that disclosure will result in one of the enumerated harms, the 
court ``may'' issue a nondisclosure order for no longer than 
180 days, but a court could still refuse to do so with the 
current language.
    The government can seek renewals of nondisclosure orders 
for additional periods of not longer than 180 days each. If 
there comes a time when the facts supporting a nondisclosure 
order issued by the court cease to exist, this section requires 
the government to promptly notify a recipient who sought 
judicial review of a nondisclosure order that the nondisclosure 
is no longer in effect.
    Most of Section 207 is aimed at codifying Doe v. 
Mukasey\13\ which held that open-ended nondisclosure 
requirements for NSL recipients without meaningful judicial 
review are an unconstitutional prior restraint on the first 
amendment speech of the recipient. It further held that while 
high level government official certifications regarding the 
potential harms from disclosure could be provided deference by 
reviewing district courts, they could not be a ``conclusive 
certification'' precluding meaningful district court review of 
the potential harms if the recipient challenged. The FBI 
currently provides notice of right to judicial review and 
initiates timely judicial review upon request by the recipient 
of any NSL pursuant to Doe v. Mukasey.
---------------------------------------------------------------------------
    \13\549 F.3d 861 (2nd Cir. 2008)
---------------------------------------------------------------------------
    This section, however, goes well beyond the mandate in Doe 
or the current procedures provided by the FBI pursuant to Doe. 
First, this section requires the government to provide to the 
court in its initiation of judicial review a ``statement of 
specific and articulable facts indicating that, absent a 
prohibition of disclosure under this section, there may result 
in a danger to the national security of the United States, 
interference with a criminal, counterterrorism, or 
counterintelligence investigation, interference with diplomatic 
relations, or danger to the life or physical safety of any 
person.''Neither current law nor this bill requires ``specific 
and articulable facts'' be provided to the recipient to justify 
the initial non-disclosure. The current standard is ``certifies 
that [in the absence of nondisclosure] there may result [an 
enumerated harm].''
    Moreover, this bill provides no deference to the government 
in the standard to be used by the court in reviewing a 
challenge to a nondisclosure order. Although Doe rejected the 
concept of a conclusive certification by the government, it 
most certainly advocated deference to the government. 
Specifically, the court interpreted the statute ``to place on 
the Government the burden to show a ``good'' reason to believe 
that disclosure may result in an enumerated harm . . . and to 
place on a district court an obligation to make the `may 
result' finding only after consideration, albeit deferential, 
of the Government's explanation concerning the risk of an 
enumerated harm.''
    This section also attempts to limit renewal of 
nondisclosure to 180 days. So, even if the government prevails 
in meeting its burden for the nondisclosure order, such an 
order will only extend for an additional 180 days and the court 
must make a separate finding that the government's reason for 
nondisclosure justifies the renewal of such order.
    We have no objection to language that accurately codifies 
the court's remedy in Doe. However, this section goes well 
beyond Doe and for no apparent reason except change for the 
sake of change. We oppose these additional and unnecessary 
requirements on judicial review of NSL non-disclosure.
Minimization Procedures
    Section 208, as introduced, requires the Attorney General 
to establish minimization procedures to limit the acquisition 
and retention of, and prohibit dissemination of, information 
obtained on nonconsenting U.S. persons through NSLs--consistent 
with the need of the United States to obtain, produce, and 
disseminate foreign intelligence. Section 208 also requires 
that the minimization procedures be transmitted to the House 
and Senate Judiciary Committees and the House and Senate 
Intelligence Committees within three months of bill passage.
    This language made reference to minimizing NSLs in ``light 
of the purpose and technique of the particular surveillance.'' 
NSLs neither authorize nor acquire any surveillance, 
electronic, physical or otherwise.
    In addition to creating significant and ongoing 
administrative review of every case in which an NSL is used 
(while simultaneously limiting the scope of NSLs) in order to 
identify any information received relating to a United States 
person not believed to be an agent of a foreign power, it 
requires deadlines for the destruction, minimization, or return 
of that information, even if that information is relevant to or 
necessary to understand foreign intelligence or a national 
security investigation.
    The manager's amendment modifies the minimization language 
to delete the reference to NSLs as ``surveillance'' and removes 
the requirement that certain information be destroyed. However, 
it continues to impose unworkable, burdensome requirements on 
the acquisition, retention and dissemination of NSL-obtained 
information that will significantly curtail the use of NSLs in 
counter-terrorism and intelligence investigations.
Conclusion
    America is fortunate to not have suffered a terrorist 
attack on our soil in over eight years. This good fortune was 
not achieved by chance but by hard work, and we must not let 
our safety become complacency. America is safe today not 
because terrorists and spies have given up their mission to 
destroy our freedoms and our way of life. America is safe today 
because the men and women of the intelligence community use the 
tools provided to them under the USA PATRIOT Act and other 
intelligence laws to protect us. It would be irresponsible of 
Congress to take away or weaken the authorities needed to their 
job.
    Despite corrections to certain provisions in this bill, 
such as the standard for FISA business records and criminal and 
FISA pen registers, H.R. 3845 still suffers from numerous 
problems. The majority seeks to rewrite important foreign 
intelligence laws under the guise of civil liberty protections 
with no demonstrable evidence that such changes will, in fact, 
accomplish this goal. What we do know is that these changes for 
the sake of change risk diminishing or preventing the use of 
intelligence-collection measures that have protected America 
for eight years. We urge our colleagues to oppose this 
legislation and support instead legislation that simply 
reauthorizes the expiring provisions of current law, as 
proposed by Republican members of this Committee and by the 
Obama Administration.

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Howard Coble.
                                   Elton Gallegly.
                                   Bob Goodlatte.
                                   Daniel E. Lungren.
                                   Darrell E. Issa.
                                   J. Randy Forbes.
                                   Steve King.
                                   Trent Franks.
                                   Louie Gohmert.
                                   Jim Jordan.
                                   Ted Poe.
                                   Jason Chaffetz.
                                   Tom Rooney.
                                   Gregg Harper.

                                 
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