89–006 

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 


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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’’. 


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(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: 


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‘‘(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 ‘‘EXCEP- TION.— 

‘‘(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 


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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 


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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 INTEL- LIGENCE; 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: 


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‘‘(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.’’. 


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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 


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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— 


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(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. 


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1Pub. L. 107–56. 

2Pub. L. 108–458. 

3Pub. L. 107–56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008). 

4Pub. L. 95–511. 

5See 50 U.S.C. § 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’’). 6See 50 U.S.C. § 1805(c)(2)(B) (2001). 

7Liu, Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009, CRS 

Report for Congress, March 16, 2009, at 4 (R40138). 

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. 

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. 

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 


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8 Id. 

9 50 U.S.C. § 1805(c)(2)(B) (2008). 

10Pub. L. 107–108, § 314(a)(2)(A). 11Liu, Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009, CRS 

Report for Congress, March 16, 2009, at 5 (R40138). 12 50 U.S.C. § 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. 

to assist the government by a FISC order effectively limited the 

reach of FISC orders to known and identifiable locations.8

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. 

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

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, 

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14Pub. L. 99–508 § 106(d)(3), codified at 18 U.S.C. 2518(11) (2008). 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). 19Pub. L. 108–458 § 6001(a). 

tives 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

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 (RDE), 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

The Committee added language to section 105(c)(2)(B), the FISA 

roving wiretap provision (50 U.S.C. § 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, § 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 


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20Liu, ‘‘Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009,’’ CRS 

Report for Congress, March 16, 2009 at 3 (R40138). 21Pub. L. 110–261 § 110. 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. 24 Id. (testimony of Todd Hinnen). 25 50 U.S.C. § 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. § 1861(b)(1)(B). 

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

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. 

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. 

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 


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27 50 U.S.C. § 1861(b)(2)(A). 28 50 U.S.C. § 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. § 1861(c)(2)(E). 30 50 U.S.C. § 1861(d). 31Department of Justice letter to the Honorable Patrick J. Leahy (September 14, 2009). 32 Id. 33 Id. 34 Id. 35 Id. 36 Id. 37 50 U.S.C. § 1861(a) (2001). 38 50 U.S.C. § 1861(b)(2)(B) (2001). 39Pub. L. 107–56, codified at 50 U.S.C. § 1862(a)–(b) (2008). 40 50 U.S.C. § 1861(a)(1) (2008). 

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.’’ 

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

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

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

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 


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41Liu, ‘‘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. § 1861(a)(3) (2008). 43 50 U.S.C. § 1861(b)(2)(B) (2001). 44Pub. L. 107–56 § 215. 45Pub. L. 109–177 § 106(b). 46 Id. 47 50 U.S.C. § 1861(d)(1) (2008). 48 50 U.S.C. § 1861(f)(2)(A)(i) (2008). 49 50 U.S.C. § 1861(f)(2)(A)(ii) (2008). 50 Id. 51 50 U.S.C. § 1861(f)(2)(B) (2008). 

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

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

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

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 eiVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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52 50 U.S.C. § 1861(f)(3) (2008). 53 50 U.S.C. § 1861(f)(2)(A)(i) (2008). 54 50 U.S.C. § 1861(f)(2)(C)(ii) (2008). 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). 

ther party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.52

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

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. 

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 ComVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00017 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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mittee 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) 


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56Section 1114(a)(5)(A),12 U.S.C. 3414(a)(5)(A). 57 18 U.S.C. § 2709(a). 58Section 626, 15 U.S.C. 1681u. 59Section 627, 15 U.S.C. 1681v. 60Section 802, 50 U.S.C. 436. 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. 63See 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/dojloiglnsl.pdf (March 2007). 

(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. 

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. 

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

OIG also found one instance in which the FBI had issued NSLs 

for information after the FISC had refused to issue section 215 orVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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64Written 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. 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). 

ders 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

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

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 


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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 


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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. Sa ́nchez ......................................................................................................

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 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

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. Sa ́nchez ......................................................................................................

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 


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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. Sa ́nchez ......................................................................................................

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 


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

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. Sa ́nchez ......................................................................................................

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 .....................................................................................................


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ROLLCALL NO. 5—Continued 

Ayes Nays Present 

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. Sa ́nchez ......................................................................................................

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. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz .................................................................................... X 


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ROLLCALL NO. 6—Continued 

Ayes Nays Present 

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. Sa ́nchez ......................................................................................................

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 


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ROLLCALL NO. 7—Continued 

Ayes Nays Present 

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. Sa ́nchez ......................................................................................................

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. 


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29 

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. Sa ́nchez ......................................................................................................

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 


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ROLLCALL NO. 10—Continued 

Ayes Nays Present 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Gutierrez ..................................................................................................... X 

Ms. Baldwin ...................................................................................................... X 

Mr. Gonzalez ......................................................................................................

Mr. Weiner ......................................................................................................... X 

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ......................................................................................................

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: 


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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. CollecVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00031 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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tions 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 rovVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00032 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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ing 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 


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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. § 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. 


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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 


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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 

* * * * * * * 

øTITLE V—ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN 

INTELLIGENCE PURPOSES 

øSec. 501. Access to certain business records for foreign intelligence and international terrorism investigations. 

øSec. 502. Congressional oversight.¿ 


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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 øfinds, 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 


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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; øand¿ 

(2) øa 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 Constitutionø.¿; 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 serviceø; 

and¿; 


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39 

(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 subscriberø.¿; 

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. 

ø(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 øCERTAIN BUSINESS RECORDS¿ TANGIBLE THINGS FOR FOREIGN INTELLIGENCE PURPOSES 

SEC. 501. ACCESS TO øCERTAIN BUSINESS RECORDS¿ TANGIBLE 

THINGS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS. 

(a) * * * 

(b) Each application under this section— 

(1) * * * 

(2) shall include— 

(A) øa 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 


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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 øclandestine 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— 

ø(i) a foreign power or an agent of a foreign 

power; 

ø(ii) the activities of a suspected agent of a foreign 

power who is the subject of such authorized investigation; or 

ø(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 

ø(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 

øthings; and¿ things; 


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41 

(E) shall not disclose that such order is issued for purposes 

of an investigation described in øsubsection (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 øa 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). øNot 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 øproduction 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) * * * 

ø(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.¿ 

ø(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 


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which information concerning United States persons was retained or disseminated. 

ø(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. 

ø(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. 

ø(c)¿ (d) SUBMISSIONS TO CONGRESS.—The Attorney General 

shall submit to the committees of Congress referred to in subsection (a)— 

(1) * * * 

* * * * * * * 

ø(d)¿ (e) PROTECTION OF NATIONAL SECURITY.—The Attorney 

General, in consultation with the Director of National Intelligence, 

may authorize redactions of materials described in øsubsection (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. 

ø(e)¿ (f) DEFINITIONS.—In this section: 

(1) * * * 

* * * * * * * 

USA PATRIOT IMPROVEMENT AND REAUTHORIZATION 

ACT OF 2005 

* * * * * * * 

TITLE I—USA PATRIOT IMPROVEMENT 

AND REAUTHORIZATION ACT 

* * * * * * * 


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SEC. 102. USA PATRIOT ACT SUNSET PROVISIONS. 

(a) * * * 

(b) SECTIONS 206 AND 215 SUNSET.— 

(1) IN GENERAL.—Effective øDecember 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 

ø2006¿ 2013, including— 

(A) * * * 

* * * * * * * 

(5) an examination of the effectiveness of such section as 

an investigative tool, including— 

(A) * * * 

* * * * * * * 

(C) with respect to øcalendar 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 


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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) øor (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) øand (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) øand (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 øconcerning 

different United States persons¿ under— 

(A) section 2709 of title 18, United States Code (to access certain communication service provider records)ø, 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). 

ø(2)¿ (3) UNCLASSIFIED FORM.—The report under this section shall be submitted in unclassified form. 

* * * * * * * 


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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 ø2006¿ 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) øor (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) øor (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) øor (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 

* * * * * * * 


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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), 

øthe amendment made by subsection (a) shall cease to have effect¿ effective on December 31, 2009ø.¿— 

(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) øEXCEPTION¿ 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 

* * * * * * * 


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§ 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.] 

ø§ 2709. Counterintelligence access to telephone toll and 

transactional records 

ø(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. 

ø(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— 

ø(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 

ø(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. 

ø(c) PROHIBITION OF CERTAIN DISCLOSURE.— 


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ø(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. 

ø(2) The request shall notify the person or entity to whom 

the request is directed of the nondisclosure requirement under 

paragraph (1). 

ø(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). 

ø(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). 

ø(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. 

ø(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. 

ø(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, 

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nication 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.¿ 

§ 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. 


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(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 

* * * * * * * 

§ 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 

ømay 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 ø30 days after the date of 

its execution, or on a later date certain if the facts of the case 


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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 øfor 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 

* * * * * * * 

§ 3511. Judicial review of requests for information 

(a) * * * 

ø(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. 

ø(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. 

ø(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 

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ing 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. 


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(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. 

* * * * * * * 


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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) * * * 

* * * * * * * 

ø(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. 

ø(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. 

ø(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. 

ø(D) PROHIBITION OF CERTAIN DISCLOSURE.— 

ø(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 


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to a customer’s or entity’s financial records under subparagraph (A). 

ø(ii) The request shall notify the person or entity 

to whom the request is directed of the nondisclosure 

requirement under clause (i). 

ø(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). 

ø(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. 

* * * * * * * 


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FAIR CREDIT REPORTING ACT 

TITLE VI—CONSUMER CREDIT REPORTING 

* * * * * * * 

§ 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.] 

§ 626. Disclosures to FBI for counterintelligence purposes 

ø(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. 

ø(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 acVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00056 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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tivities 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). 

* * * * * * * 

ø§ 627. Disclosures to governmental agencies for counterterrorism purposes 

ø(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 writVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00057 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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ten certification by such government agency that such information 

is necessary for the agency’s conduct or such investigation, activity 

or analysis. 

ø(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. 

ø(c) CONFIDENTIALITY.— ø(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). 

ø(2) The request shall notify the person or entity to whom 

the request is directed of the nondisclosure requirement under 

paragraph (1). 

ø(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). 

ø(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). 

ø(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. 

ø(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. 


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ø(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). 

ø(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.] 

øREQUESTS BY AUTHORIZED INVESTIGATIVE AGENCIES

øSEC. 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. 

ø(2) Requests may be made under this section where— 

ø(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 

ø(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; 

ø(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 


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ø(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. 

ø(3) Each such request— 

ø(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— 

ø(i) the person concerned is or was an employee within 

the meaning of paragraph (2)(A); 

ø(ii) the request is being made pursuant to an authorized inquiry or investigation and is authorized under this 

section; and 

ø(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; 

ø(B) shall contain a copy of the agreement referred to in 

subparagraph (A)(iii); 

ø(C) shall identify specifically or by category the records or 

information to be reviewed; and 

ø(D) shall inform the recipient of the request of the prohibition described in subsection (b). 

ø(b) PROHIBITION OF CERTAIN DISCLOSURE.— ø(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. 

ø(2) The request shall notify the person or entity to whom 

the request is directed of the nondisclosure requirement under 

paragraph (1). 

ø(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). 

ø(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 


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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). 

ø(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. 

ø(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. 

ø(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. 

ø(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— 

ø(1) to the agency employing the employee who is the subject of the records or information; 

ø(2) to the Department of Justice for law enforcement or 

counterintelligence purposes; or 

ø(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. 

ø(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 inVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00061 Fmt 6659 Sfmt 6603 E:\HR\OC\HR382P1.XXX HR382P1

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formation 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 


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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 


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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 


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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.’’ 


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1Department of Navy v. Egan, 484 U.S. 518, 530 (1988). 2Zadvydas v. Davis, 533 U.S. 678, 696 (2001). 3 549 F.3d 861 (2nd Cir. 2008) 

This prohibition is completely unnecessary and creates a safehaven 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

Last December, the Second Circuit Court of Appeals issued a decision in Doe v. Mukasey 3 relating to the nondisclosure provision 


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4 Id. at 881. 5 Egan, 484 U.S. at 529–30 (citations omitted). 

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. 

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. 

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

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. § 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. 


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6 U.S. Const. amend VI. 

7P.L. 96–456, codified at 18 U.S.C. app. 3 § 1–16. 8S. REPT. 96–823, at 1. 

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. 

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 inVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00068 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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9 18 U.S.C. §§ 3103a(b)(1); 2705(a)(2). 

tended to provide a means for the court to determine whether classified information is actually material to the defense. 

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 openup 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-bycase 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. § 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. 

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 


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10See 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). 

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. 

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 govVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00070 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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12Smith v. Maryland, 442 U.S. 735, 741 (1979) (citations omitted). 

ernment 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

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 InterVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00071 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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national 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.’’ 


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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. 


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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. 


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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. 


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13 549 F.3d 861 (2nd Cir. 2008) 

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 certifiVerDate Nov 24 2008 01:12 Dec 18, 2009 Jkt 089006 PO 00000 Frm 00076 Fmt 6659 Sfmt 6601 E:\HR\OC\HR382P1.XXX HR382P1

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cations 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. 

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 


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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. 


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JASON CHAFFETZ. TOM ROONEY. GREGG HARPER. 

Æ 


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