`[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1266 Reported in Senate (RS)]






                                                       Calendar No. 132
109th CONGRESS
  1st Session
                                S. 1266

                          [Report No. 109-85]

    To permanently authorize certain provisions of the Uniting and 
   Strengthening America by Providing Appropriate Tools Required to 
    Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, to 
   reauthorize a provision of the Intelligence Reform and Terrorism 
 Prevention Act of 2004, to clarify certain definitions in the Foreign 
     Intelligence Surveillance Act of 1978, to provide additional 
investigative tools necessary to protect the national security, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 16, 2005

 Mr. Roberts, from the Select Committee on Intelligence, reported the 
    following original bill; which was read twice and placed on the 
                                calendar

_______________________________________________________________________

                                 A BILL


 
    To permanently authorize certain provisions of the Uniting and 
   Strengthening America by Providing Appropriate Tools Required to 
    Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, to 
   reauthorize a provision of the Intelligence Reform and Terrorism 
 Prevention Act of 2004, to clarify certain definitions in the Foreign 
     Intelligence Surveillance Act of 1978, to provide additional 
investigative tools necessary to protect the national security, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

     TITLE I--REPEAL AND EXTENSION OF SUNSET ON CERTAIN AUTHORITIES

SEC. 101. EXPANSION OF ENHANCED SURVEILLANCE PROCEDURES NOT SUBJECT TO 
              SUNSET UNDER USA PATRIOT ACT.

    Section 224(a) of the USA PATRIOT Act of 2001 (Public Law 107-56; 
115 Stat. 295; 18 U.S.C. 2510 note) is amended--
            (1) by striking ``203(a), 203(c)'' and inserting ``203, 
        204'';
            (2) by inserting ``206, 207,'' after ``205,'';
            (3) by inserting ``214, 215,'' after ``213,'';
            (4) by inserting ``218,'' after ``216,''; and
            (5) by striking ``and 222'' and inserting ``222, and 225''.

SEC. 102. EXTENSION OF SUNSET OF TREATMENT OF INDIVIDUAL TERRORISTS AS 
              AGENTS OF FOREIGN POWERS.

    Subsection (b) of section 6001 of the Intelligence Reform and 
Terrorism Prevention Act of 2004 (Public Law 108-458; 118 Stat. 3742) 
is amended to read as follows:
    ``(b) Sunset.--(1) Except as provided in paragraph (2), the 
amendment made by subsection (a) shall cease to have effect on December 
31, 2009.
    ``(2) With respect to any particular foreign intelligence 
investigation that began before the date on which the amendment made by 
subsection (a) ceases to have effect, section 101(b)(1) of the Foreign 
Intelligence Surveillance Act of 1978, as amended by subsection (a), 
shall continue in effect.''.

          TITLE II--FOREIGN INTELLIGENCE SURVEILLANCE MATTERS

                    Subtitle A--Definitional Matters

SEC. 201. CLARIFICATION OF CONTENTS OF COMMUNICATIONS FOR PURPOSES OF 
              FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

    Subsection (n) of section 101 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1801) is amended to read as 
follows:
    ``(n) `Contents', when used with respect to a communication, 
includes any information concerning the substance, purport, or meaning 
of such communication.''.

SEC. 202. CLARIFICATION OF FOREIGN INTELLIGENCE INFORMATION FOR 
              PURPOSES OF FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
              1978.

    Section 101(e)(1) of the Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1801(e)(1)) is amended in the matter preceding 
subparagraph (A) by inserting ``(including protection by use of law 
enforcement methods such as criminal prosecution)'' after ``protect''.

                       Subtitle B--Other Matters

SEC. 211. ACCESS TO BUSINESS RECORDS FOR INVESTIGATIONS UNDER FOREIGN 
              INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Clarification of Access.--(1) Subsection (a)(1) of section 501 
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) 
is amended--
            (A) by striking ``items) for'' and inserting ``items) 
        relevant to''; and
            (B) by striking ``clandestine intelligence activities,'' 
        and all that follows through the period and inserting 
        ``clandestine intelligence activities.''.
    (2) Subsection (b)(2) of such section is amended by striking 
``sought for'' and inserting ``relevant to''.
    (b) Limitations on Disclosure.--Such section is further amended by 
striking subsection (d) and inserting the following new subsection (d):
    ``(d)(1) No person shall disclose to any other person that the 
Federal Bureau of Investigation has sought or obtained tangible things 
pursuant to an order under this section other than to--
            ``(A) those persons to whom such disclosure is necessary to 
        comply with such order;
            ``(B) an attorney to obtain legal advice or assistance with 
        respect to the production of things in response to the order; 
        or
            ``(C) other persons as permitted by the Director of the 
        Federal Bureau of Investigation or the designee of the 
        Director.
    ``(2)(A) Any person having received a disclosure under subparagraph 
(A), (B), or (C) of paragraph (1) shall be subject to the prohibitions 
on disclosure under that paragraph.
    ``(B) Any person making a further disclosure authorized by 
subparagraph (A), (B), or (C) of paragraph (1) shall notify the person 
to whom the disclosure is made of the prohibitions on disclosure under 
this subsection.
    ``(3) An order under this section shall notify, in writing, the 
person to whom the order is directed of the nondisclosure requirements 
under this subsection.''.
    (c) Minimization of Retention and Dissemination of Tangible 
Things.--Such section is further amended by adding at the end the 
following new subsection:
    ``(f) The Attorney General shall adopt minimization procedures 
governing the retention and dissemination by the Federal Bureau of 
Investigation of any tangible things received by the Bureau in response 
to an order under this section.''.
    (d) Judicial Review.--Such section is further amended by adding at 
the end the following new subsection:
    ``(g)(1) Following the receipt of an order under this section, but 
before the production of tangible things under the order, the person 
charged with production of such tangible things may, in the Foreign 
Intelligence Surveillance Court, petition to modify or set aside the 
order. Such petition shall be filed in a manner consistent with 
paragraph (2).
    ``(2)(A) All proceedings under this subsection shall be closed 
consistent with the requirements of subsection (d) and subject to any 
right to an open hearing in a criminal proceeding.
    ``(B) All petitions, filings, records, orders, and subpoenas with 
respect to any proceedings under this subsection shall be filed and 
maintained under seal.
    ``(3)(A) In any proceedings under this subsection, the Foreign 
Intelligence Surveillance Court shall, upon request of the Federal 
Government, review any submission, or portion thereof, of the Federal 
Government containing classified information, or other sensitive 
information the disclosure of which would harm national security, ex 
parte and in camera.
    ``(B) If the Court reviews any submission of the Federal Government 
under subparagraph (A) ex parte and in camera, the Court may disclose 
the information subject to such review to the person filing the 
petition concerned, under appropriate security procedures and 
protective orders, only where such disclosure is necessary to make an 
accurate determination for purposes of paragraph (5).
    ``(4) The Foreign Intelligence Surveillance Court may modify or set 
aside a nondisclosure requirement imposed under subsection (d) at the 
request of the person charged with production of tangible things 
pursuant to an order under this section, unless the Director of the 
Federal Bureau of Investigation certifies to the Court that disclosure 
may result in a danger to the national security of the United States.
    ``(5) The Foreign Intelligence Surveillance Court may modify or set 
aside an order under this section if compliance with the order would be 
unreasonable or oppressive.
    ``(6) The Foreign Intelligence Surveillance Court shall adopt and 
publish procedures governing petitions filed under this subsection.
    ``(7) In this subsection, the term `Foreign Intelligence 
Surveillance Court' means the court established by section 103(a).''.
    (e) Congressional Oversight.--Section 502(b) of such Act (50 U.S.C. 
1862(b)) is amended--
            (1) in paragraph (1), by striking ``and'' at the end;
            (2) in paragraph (2), by striking the period at the end and 
        inserting ``; and'' '; and
            (3) by adding at the end the following new paragraph:
            ``(3) the total number of applications made for orders 
        approving requests for the production of tangible things under 
        section 501, and the total number of orders either granted, 
        modified, or denied, when the application or order involved 
        each of the following:
                    ``(A) The production of tangible things from a 
                library, as defined in section 213(2) of the Library 
                Services and Technology Act (20 U.S.C. 9122(2)).
                    ``(B) The production of tangible things from a 
                person or entity primarily engaged in the sale, rental, 
                or delivery of books, journals, magazines, or other 
                similar forms of communication whether in print or 
                digitally.
                    ``(C) The production of records related to the 
                purchase of a firearm, as defined in section 921(a)(3) 
                of title 18, United States Code.
                    ``(D) The production of health information, as 
                defined in section 1171(4) of the Social Security Act 
                (42 U.S.C. 1320d(4)).
                    ``(E) The production of taxpayer return 
                information, return, or return information, as defined 
                in section 6103(b) of the Internal Revenue Code of 1986 
                (26 U.S.C. 6103(b)).''.

SEC. 212. NATIONAL SECURITY MAIL COVERS.

    (a) In General.--The Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended--
            (1) by striking title VII; and
            (2) by adding at the end the following new title VII:

               ``TITLE VII--NATIONAL SECURITY MAIL COVERS

                             ``definitions

    ``Sec. 701. In this title:
            ``(1) The terms `foreign intelligence information', 
        `foreign power', `international terrorism', and `United States 
        person' have the meaning given such terms in section 101.
            ``(2)(A) The term `mail cover' means the process by which--
                    ``(i) a nonconsensual record is made of any data 
                appearing on the outside cover of any sealed mail or 
                unsealed mail delivered to an address, forwarding 
                address, or Post Office box; or
                    ``(ii) a record is made of the contents of any 
                unsealed mail as authorized by law.
            ``(B) The term does not include any transcription, 
        photograph, photocopy, or any other facsimile of the image of 
        the contents of any sealed mail.
            ``(C) The term also does not include the making of a record 
        of the data appearing on the outside cover of any sealed mail 
        or unsealed mail, or the contents of any unsealed mail, mailed 
        between the target and the target's known attorney.
            ``(3) The term `record' means--
                    ``(A) in the case of any mail, a transcription, 
                photograph, photocopy, or other facsimile of the image 
                of the outside contents, cover, envelope, or wrapper of 
                such mail; and
                    ``(B) in the case of unsealed mail, a 
                transcription, photograph, photocopy, or other 
                facsimile of the image of the contents of such mail.
            ``(4) The term `sealed mail' means mail on which 
        appropriate postage is paid, and which under postal laws and 
        regulations is included within a class of mail maintained by 
        the United States Postal Service for the transmission of mail 
        sealed against inspection, including first class mail, express 
        mail, international letter mail, and mailgram messages.
            ``(5) The term `unsealed mail' means mail on which 
        appropriate postage for sealed mail has not been paid and which 
        under postal laws or regulations is not included within a class 
        of mail maintained by the United States Postal Service for the 
        transmission of mail sealed against inspection, including 
        second class mail, third class mail, and fourth class mail, and 
        international parcel post mail.

                    ``national security mail covers

    ``Sec. 702. (a) Duty To Provide.--(1) The United States Postal 
Service shall comply with each request for mail covers made under 
subsection (b).
    ``(2) In complying under paragraph (1) with a request for mail 
covers with respect to a target specified in the request, the United 
States Postal Service shall provide available records of all mail 
matter specified in the request that is delivered to the address, 
forwarding address, or Post Office box of the target as specified in 
the request.
    ``(3) In complying under paragraph (1) with a request for mail 
covers with respect to a target specified in the request, the United 
States Postal Service shall, if requested, provide available records of 
all outgoing mail matter from such target.
    ``(4) Mechanical reproduction shall be used to make records under 
this subsection, unless circumstances render such reproduction 
impracticable.
    ``(b) Requests for Mail Covers.--(1) The Director of the Federal 
Bureau of Investigation, or a designee of the Director in a position 
not lower than Deputy Assistant Director at Bureau headquarters or 
Special Agent in Charge (including an `acting' Special Agent in Charge) 
in a Bureau field office designated by the Director, may request mail 
covers under subsection (a) if the Director or such designee certifies 
in writing to the United States Postal Service that such mail covers 
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.
    ``(2) The Postmaster General shall designate officers and employees 
of the United States Postal Service who are eligible to receive 
requests under paragraph (1).
    ``(3) An investigation conducted under this section shall--
            ``(A) be conducted under guidelines approved by the 
        Attorney General under Executive Order 12333 (or a successor 
        order); and
            ``(B) not be conducted concerning a United States person 
        solely on the basis of activities protected by the first 
        amendment to the Constitution of the United States.
    ``(c) Contents of Request.--In addition to the certification 
required under subsection (b) with respect to a request for mail covers 
described in that subsection, a request for mail covers under 
subsection (b) shall specify--
            ``(1) the name and address of the Federal Bureau of 
        Investigation official making the request;
            ``(2) the authority of such official to make the request;
            ``(3) the name, if known, of the target of the request;
            ``(4) the name, if known, of the known attorney of the 
        target;
            ``(5) at least one, and any additional (if known), of the 
        address, forwarding address, or Post Office box of the target;
            ``(6) the classes of mail to be covered by the request;
            ``(7) whether incoming mail, outgoing mail, or both are to 
        be covered by the request;
            ``(8) the duration of the request; and
            ``(9) the name and phone number of a local official of the 
        Bureau who will facilitate the collection of the records 
        produced in response to the request.
    ``(d) Duration.--(1) Except as provided in paragraph (2), no 
request for mail covers under subsection (b) shall remain in force 
longer than 120 consecutive days.
    ``(2) In the case of a request for mail covers under subsection (b) 
targeted against a foreign power, the request shall remain in force for 
the lesser of--
            ``(A) the period specified in the request; or
            ``(B) one year.
    ``(3)(A) A request under subsection (b) may be extended, but only 
upon submittal of a new request under this section.
    ``(B) Except as provided in subparagraph (C), the period of 
extension under this paragraph of a request for mail covers shall not 
be more than 120 days.
    ``(C) The period of extension under this paragraph of a request for 
mail covers targeted against a foreign power or an agent of a foreign 
power (as defined in section 101(b)(1)(A)) shall be for the lesser of--
            ``(i) the period specified in the request for extension 
        under this paragraph; or
            ``(ii) one year.
    ``(e) Minimization.--The Attorney General shall adopt minimization 
procedures governing the retention and dissemination by the Federal 
Bureau of Investigation of any records received by the Bureau in 
response to a request under subsection (b).
    ``(f) Nondisclosure Requirements.--(1) No officer or employee of 
the United States Postal Service, or agent thereof, shall disclose to 
any person that the Federal Bureau of Investigation has sought or 
received records under a request under subsection (b) other than to--
            ``(A) those persons to whom such disclosure is necessary to 
        comply with the request;
            ``(B) an attorney, who shall be an officer or employee of 
        the United States Postal Service, to obtain legal advice or 
        assistance with respect to the production of records in 
        response to the request; or
            ``(C) other persons as permitted by the Director of the 
        Federal Bureau of Investigation or a designee of the Director 
        under subsection (b).
    ``(2)(A) Any person having received a disclosure under subparagraph 
(A), (B), or (C) of paragraph (1) shall be subject to the prohibitions 
on disclosure under that paragraph.
    ``(B) Any person making a further disclosure authorized by 
subparagraph (A), (B), or (C) of paragraph (1) shall notify the person 
to whom the disclosure is made of the prohibitions on disclosure under 
this subsection.
    ``(3) A request under subsection (b) shall notify, in writing, the 
person to whom the request is directed of the nondisclosure 
requirements under this subsection.

                       ``congressional oversight

    ``Sec. 703. (a) Semiannual Notice on Use of Mail Covers.--On a 
semiannual basis, the Attorney General shall fully inform the Select 
Committee on Intelligence of the Senate and the Permanent Select 
Committee on Intelligence of the House of Representatives concerning 
all requests for, and use of, national security mail covers pursuant to 
this title.
    ``(b) Semiannual Report on Mail Covers Requested.--On a semiannual 
basis, the Attorney General shall submit to the committees of Congress 
referred to in subsection (a) and to the Committees on the Judiciary of 
the Senate and the House of Representatives a report setting forth, 
with respect to the preceding six-month period, the total number of 
national security mail covers requested under this title.''.
    (b) Clerical Amendment.--The table of contents for that Act is 
amended by striking the items relating to title VII and section 701 and 
inserting the following new items:

               ``TITLE VII--NATIONAL SECURITY MAIL COVERS

``Sec. 701. Definitions.
``Sec. 702. National security mail covers.
``Sec. 703. Congressional oversight.''.

SEC. 213. ADMINISTRATIVE SUBPOENAS IN NATIONAL SECURITY INVESTIGATIONS.

    (a) In General.--The Foreign Intelligence Surveillance Act of 1978, 
as amended by section 212(a) of this Act, is further amended by adding 
at the end the following new title:

      ``TITLE VIII--ADMINISTRATIVE SUBPOENAS IN NATIONAL SECURITY 
                             INVESTIGATIONS

                             ``definitions

    ``Sec. 801. In this title:
            ``(1) The terms `international terrorism', `foreign 
        intelligence information', `Attorney General', and `United 
        States person' have the meaning given such terms in section 
        101.
            ``(2) The term `Foreign Intelligence Surveillance Court' 
        means the court established by section 103(a).

                        ``authorization to issue

    ``Sec. 802. (a) Authorization To Issue.--
            ``(1) In general.--The Attorney General, or a designee of 
        the Attorney General under paragraph (2), may issue in writing 
        and caused to be served a subpoena requiring--
                    ``(A) the production of any records or other 
                materials that are relevant to an authorized 
                investigation--
                            ``(i) to obtain foreign intelligence 
                        information not concerning a United States 
                        person; or
                            ``(ii) to protect against international 
                        terrorism or clandestine intelligence 
                        activities; and
                    ``(B) a certification by the custodian of such 
                records or other materials concerning the production 
                and authentication of such records or other materials.
            ``(2) Designees.--A designee of the Attorney General under 
        this paragraph is any official designated by the Attorney 
        General from officials as follows:
                    ``(A) Any official of the Department of Justice in 
                a position not lower than Assistant Attorney General 
                which position has responsibility for national security 
                investigations.
                    ``(B) Any United States Attorney.
                    ``(C) Any Assistant United States Attorney with 
                responsibility for national security investigations.
                    ``(D) The Director of the Federal Bureau of 
                Investigation.
                    ``(E) Any official of the Federal Bureau of 
                Investigation in a position not lower than Deputy 
                Assistant Director, at Bureau headquarters, or a 
                Special Agent in Charge (including an `acting' Special 
                Agent in Charge), at a Bureau field office.
    ``(b) Governing Authorities.--An investigation conducted under this 
section shall--
            ``(1) be conducted under guidelines approved by the 
        Attorney General under Executive Order 12333 (or a successor 
        order); and
            ``(2) not be conducted concerning a United States person 
        solely upon the basis of activities protected by the first 
        amendment to the Constitution of the United States.
    ``(c) Records Not Subject To Production.--Any documentary evidence 
that would be privileged from disclosure if demanded by a subpoena 
duces tecum issued by a court of the United States in aid of a grand 
jury investigation of espionage or international terrorism shall be 
privileged from disclosure if demanded by a subpoena issued under this 
section.

                        ``contents of subpoenas

    ``Sec. 803. A subpoena issued under section 802 shall describe the 
records or items required to be produced and prescribe a return date 
within a reasonable period of time within which such records or items 
can be assembled and made available and at a location not more than 500 
miles distant from the place where the subpoena was served.

                        ``production of records

    ``Sec. 804. The production of records under a subpoena issued under 
section 802 may be required from any place in any State, or in any 
territory or other place subject to the jurisdiction of the United 
States.

                               ``service

    ``Sec. 805. (a) In General.--A subpoena issued under section 802 
may be served by any person designated in the subpoena as the agent of 
service.
    ``(b) Service of Subpoena.--
            ``(1) Natural person.--Service of a subpoena upon a natural 
        person may be made by personal delivery of the subpoena to that 
        person, or by certified mail with return receipt requested.
            ``(2) Business entities and associations.--Service of a 
        subpoena may be made upon a domestic or foreign corporation, or 
        upon a partnership or other unincorporated association that is 
        subject to suit under a common name, by delivering the subpoena 
        to an officer, to a managing or general agent, or to any other 
        agent authorized by appointment or by law to receive service of 
        process.
            ``(3) Proof of service.--The affidavit of the person 
        serving the subpoena entered by that person on a true copy 
        thereof shall be sufficient proof of service.

                             ``enforcement

    ``Sec. 806. (a) Enforcement.--
            ``(1) In general.--In the case of a failure or refusal to 
        obey a subpoena issued under section 802 to any person or 
        entity, the Attorney General may invoke the aid of the Foreign 
        Intelligence Surveillance Court or any court of the United 
        States within the jurisdiction of which the investigation 
        concerned is carried on, or the subpoenaed person resides, 
        carries on business, or may be found, to compel compliance with 
        the subpoena.
            ``(2) Venue for proceedings.--If a person or entity files, 
        in a court other than the court in which the Government files 
        for enforcement proceedings under paragraph (1), a petition 
        under section 808 for judicial review of a subpoena issued 
        under section 802 before the Government files for such 
        enforcement proceedings under paragraph (1), the court in which 
        such enforcement proceedings are initiated under paragraph (1) 
        shall dismiss, without prejudice, such enforcement proceedings 
        or transfer further proceedings under this section to the court 
        in which such judicial review proceedings have been initiated.
    ``(b) Order.--A court of the United States referred to in 
subsection (a) may issue an order requiring the subpoenaed person to 
produce records or items in accordance with the subpoena, to appear, or 
to give testimony relating to compliance with the subpoena. Any failure 
to obey the order of the court may be punished by the court as contempt 
thereof.
    ``(c) Service of Process.--Any process under this subsection may be 
served in any judicial district in which the person may be found.

                      ``nondisclosure requirements

    ``Sec. 807. (a) In General.--If the Attorney General, or a designee 
of the Attorney General under section 802, certifies that a danger to 
the national security of the United States may result, no person shall 
disclose to any other person that a subpoena was received or records 
were provided pursuant to this title, other than to--
            ``(1) those persons to whom such disclosure is necessary to 
        comply with the subpoena;
            ``(2) an attorney to obtain legal advice or assistance with 
        respect to the production of records in response to the 
        subpoena; or
            ``(3) other persons as permitted by the Attorney General or 
        the designee of the Attorney General.
    ``(b) Notice of Nondisclosure Requirements.--
            ``(1) In general.--A subpoena under section 802 shall 
        notify, in writing, the person to whom the subpoena is directed 
        of the nondisclosure requirements under subsection (a).
            ``(2) Notice under further disclosures.--Any person making 
        a further disclosure authorized by paragraph (1), (2), or (3) 
        of subsection (a) shall notify the person to whom the 
        disclosure is made of the prohibitions on disclosure under this 
        section.
    ``(c) Further Applicability of Nondisclosure Requirements.--Any 
person who receives a disclosure under this section shall be subject to 
the prohibitions on disclosure under subsection (a).
    ``(d) Enforcement of Nondisclosure Requirements.--Whoever knowingly 
violates subsection (a) or (c) shall be imprisoned for not more than 1 
year, fined not more than $10,000, or both, and if the violation is 
committed with the intent to obstruct an investigation described in 
section 802(a)(1), shall be imprisoned for not more than 5 years, fined 
not more than $50,000, or both.
    ``(e) Termination of Nondisclosure Requirements.--If the Attorney 
General, or a designee of the Attorney General under section 802, 
concludes with respect to any subpoena issued under section 802 and for 
which a certification has been made under subsection (a) that 
nondisclosure is no longer justified by a danger to the national 
security of the United States--
            ``(1) the provisions of subsections (a) through (d) of this 
        section shall no longer apply with respect to such subpoena; 
        and
            ``(2) an officer, employee, or agency of the United States 
        shall notify the relevant person that such provisions shall no 
        longer apply with respect to such subpoena.

                           ``judicial review

    ``Sec. 808. (a) Judicial Review.--
            ``(1) In general.--At any time before the return date 
        specified in a subpoena issued under section 802, the person or 
        entity subpoenaed may, in the Foreign Intelligence Surveillance 
        Court or the district court for the district in which that 
        person or entity does business or resides, petition for an 
        order modifying or setting aside the subpoena. Such petition 
        shall be filed in a manner consistent with paragraph (3).
            ``(2) Venue for proceedings.--If the Government files, in a 
        court other than the court in which judicial review proceedings 
        are initiated under paragraph (1), an enforcement action under 
        section 806 before a petition for judicial review proceedings 
        is filed under paragraph (1), the court in which such petition 
        is filed under paragraph (1) shall dismiss, without prejudice, 
        such judicial review proceedings or transfer further 
        proceedings under this section to the court in which such 
        enforcement proceedings have been initiated.
            ``(3) Closed proceedings.--If a certification has been made 
        under section 807(a) with respect to a subpoena, and the 
        nondisclosure requirements of section 807 continue to apply 
        with respect to such subpoena--
                    ``(A) all proceedings under this section shall be 
                closed to the extent necessary to ensure nondisclosure 
                of the issuance of the subpoena, subject to any right 
                to an open hearing in a criminal proceeding; and
                    ``(B) all petitions, filings, records, orders, and 
                subpoenas with respect to such proceedings shall be 
                filed and maintained under seal.
    ``(b) Review of Government Submissions.--
            ``(1) Requirements regarding certain information.--In all 
        proceedings under this section, the court shall, upon request 
        of the Federal Government, review any submission of the Federal 
        Government, or portion thereof, containing classified 
        information, or other sensitive information the disclosure of 
        which would harm national security, ex parte and in camera.
            ``(2) Limited authority to disclose.--If the court reviews 
        any submission of the Federal Government under paragraph (1) ex 
        parte and in camera, the court may disclose the information 
        subject to such review to the person filing the petition 
        concerned, under appropriate security procedures and protective 
        orders, only where such disclosure is necessary to make an 
        accurate determination for purposes of subsection (d).
    ``(c) Modification of Nondisclosure Requirements.--A court may 
modify or set aside a nondisclosure requirement imposed under section 
807 at the request of a person to whom a subpoena has been directed 
under section 802, unless the Attorney General or the Director of the 
Federal Bureau of Investigation certifies to the court that disclosure 
may result in a danger to the national security of the United States.
    ``(d) Standard of Review.--A court may modify or set aside a 
subpoena under this section if compliance with the subpoena would be 
unreasonable or oppressive.

                    ``immunity from civil liability

  ``Sec. 809. Any person, including any officer, agent, or employee of 
a non-natural person, who in good faith produces the records or items 
requested in a subpoena issued under section 802 shall not be liable in 
any court of the United States or any State to any customer or other 
person for such production, or for nondisclosure of that production to 
the customer or other person.

                      ``guidelines and procedures

    ``Sec. 810. (a) In General.--The Attorney General, in consultation 
with the Director of the Federal Bureau of Investigation, shall, by 
regulation, establish such guidelines as are necessary to ensure the 
effective implementation of this title.
    ``(b) Minimization.--The Attorney General shall adopt specific 
minimization procedures governing the retention and dissemination by 
the Federal Bureau of Investigation of any records received by the 
Bureau in response to a subpoena under this title.
    ``(c) Procedures.--The Foreign Intelligence Surveillance Court 
shall adopt and publish procedures governing the enforcement, under 
section 806, and judicial review, under section 808, of subpoenas under 
this title.

                       ``congressional oversight

    ``Sec. 811. (a) Semiannual Notice on Use of Administrative 
Subpoenas.--On a semiannual basis, the Attorney General shall fully 
inform the Select Committee on Intelligence of the Senate and the 
Permanent Select Committee on Intelligence of the House of 
Representatives concerning all requests for, and uses of, 
administrative subpoenas pursuant to this title.
    ``(b) Semiannual Report on Administrative Subpoenas Requested.--On 
a semiannual basis, the Attorney General shall submit to the committees 
of Congress referred to in subsection (a) and to the Committees on the 
Judiciary of the Senate and the House of Representatives a report 
setting forth, with respect to the preceding six-month period--
            ``(1) the total number of administrative subpoenas issued 
        under this title;
            ``(2) the total number of certifications under section 
        807(a);
            ``(3) the total number of petitions filed under section 
        808;
            ``(4) the total number of petitions modified or set aside 
        pursuant to section 808(a); and
            ``(5) the total number of administrative subpoenas issued 
        under this title requiring the production of any records or 
        other materials from or with respect to each of the following:
                    ``(A) From a library, as defined in section 213(2) 
                of the Library Services and Technology Act (20 U.S.C. 
                9122(2)).
                    ``(B) From a person or entity primarily engaged in 
                the sale, rental, or delivery of books, journals, 
                magazines, or other similar forms of communication 
                whether in print or digitally.
                    ``(C) With respect to the purchase of a firearm, as 
                defined in section 921(a)(3) of title 18, United States 
                Code.
                    ``(D) With respect to health information, as 
                defined in section 1171 of the Social Security Act (42 
                U.S.C. 1320d(4)).
                    ``(E) With respect to taxpayer return information, 
                return, or return information, as defined in section 
                6103(b) of the Internal Revenue Code of 1986 (26 U.S.C. 
                6103(b)).''.
    (b) Clerical Amendment.--The table of contents for that Act, as 
amended by section 212(b) of this Act, is further amended adding at the 
end the following new items:

      ``TITLE VIII--ADMINISTRATIVE SUBPOENAS IN NATIONAL SECURITY 
                             INVESTIGATIONS

``Sec. 801. Definitions.
``Sec. 802. Authorization to issue.
``Sec. 803. Contents of subpoena.
``Sec. 804. Production of records.
``Sec. 805. Service.
``Sec. 806. Enforcement.
``Sec. 807. Nondisclosure requirements.
``Sec. 808. Judicial review.
``Sec. 809. Immunity from civil liability.
``Sec. 810. Guidelines and procedures.
``Sec. 811. Congressional oversight.''.
    (c) Implementation.--(1) The Attorney General shall issue the 
guidelines required by section 810(a) of the Foreign Intelligence 
Surveillance Act of 1978, as added by subsection (a), not later than 
180 days after the date of the enactment of this Act.
    (2) Not later than 180 days after the date of the issuance of the 
guidelines described in paragraph (1), the Federal Bureau of 
Investigation shall use the authority for administrative subpoenas 
provided in title VIII of the Foreign Intelligence Surveillance Act of 
1978, as so added--
            (A) to access certain communication service provider 
        records in lieu of the authority in section 2709 of title 18, 
        United States Code;
            (B) to obtain financial institution customer records in 
        lieu of the authority in section 1114 of the Right to Financial 
        Privacy Act (12 U.S.C. 3414);
            (C) to obtain financial information, records, and consumer 
        reports in lieu of the authority in section 802 of the National 
        Security Act of 1947 (50 U.S.C. 436);
            (D) to obtain certain financial information and consumer 
        reports in lieu of the authority in section 625 of the Fair 
        Credit Reporting Act (15 U.S.C. 1681u); and
            (E) to obtain credit agency consumer records for 
        counterterrorism investigations in lieu of the authority in 
        section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v).
    (d) Report.--(1) The Attorney General and Director of National 
Intelligence shall, in consultation with the heads of other affected 
departments and agencies of the United States Government, examine the 
continuing need for the authority in title V of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.), and the 
authority to utilize so-called ``national security letters'' (including 
requests under the authorities referred to in subparagraphs (A) through 
(E) of subsection (c)(2)), in light of the amendments made by this 
section.
    (2) Not later than one year after the date of the enactment of this 
Act, the Attorney General and the Director shall jointly submit to the 
appropriate committees of Congress a report on the examination 
conducted under paragraph (1). The report shall be submitted in 
unclassified form, but may include a classified annex.
    (3) In this subsection, the term ``appropriate committees of 
Congress'' means--
            (A) the Select Committee on Intelligence and the Committee 
        on the Judiciary of the Senate; and
            (B) the Permanent Select Committee on Intelligence and the 
        Committee on the Judiciary of the House of Representatives.
    (e) Sunset.--(1) Except as provided in paragraph (2), this section, 
and the amendments made by this section, shall cease to have effect on 
December 31, 2009.
    (2) 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, such provisions 
shall continue in effect.

SEC. 214. MODIFICATION OF SEMIANNUAL REPORT REQUIREMENT ON ACTIVITIES 
              UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

    Paragraph (2) of section 108(a) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1808(a)) is amended to read as 
follows:
    ``(2) Each report under the first sentence of paragraph (1) shall 
include a description of each criminal case in which information 
acquired under this Act has been authorized for use at trial during the 
period covered by such report.''.

SEC. 215. AUTHORITY FOR DISCLOSURE OF ADDITIONAL INFORMATION IN 
              CONNECTION WITH ORDERS FOR PEN REGISTERS OR TRAP AND 
              TRACE DEVICES UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT 
              OF 1978.

    Section 402(d)(2) of the Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1842(d)(2)) is amended--
            (1) in subparagraph (A)--
                    (A) in clause (ii), by adding ``and'' at the end; 
                and
                    (B) in clause (iii), by striking the period at the 
                end and inserting a semicolon; and
            (2) in subparagraph (B)(iii), by striking the period at the 
        end and inserting ``; and''; and
            (3) by adding at the end the following new subparagraph:
            ``(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) the name of the customer or 
                        subscriber;
                            ``(II) the address of the customer or 
                        subscriber;
                            ``(III) the telephone or instrument number, 
                        or other subscriber number or identifier, of 
                        the customer or subscriber, including any 
                        temporarily assigned network address or 
                        associated routing or transmission information;
                            ``(IV) the length of the provision of 
                        service by such provider to the customer or 
                        subscriber and the types of services utilized 
                        by the customer or subscriber;
                            ``(V) in the case of a provider of local or 
                        long distance telephone service, any local or 
                        long distance telephone records of the customer 
                        or subscriber;
                            ``(VI) if applicable, any records 
                        reflecting period of usage (or sessions) by the 
                        customer or subscriber; and
                            ``(VII) any mechanisms and sources of 
                        payment for such service, including the number 
                        of any credit card or bank account utilized for 
                        payment for such service; and
                    ``(ii) if available, with respect to any customer 
                or subscriber of incoming or outgoing communications to 
                or from the service covered by the order--
                            ``(I) the name of such customer or 
                        subscriber;
                            ``(II) the address of such customer or 
                        subscriber;
                            ``(III) the telephone or instrument number, 
                        or other subscriber number or identifier, of 
                        such customer or subscriber, including any 
                        temporarily assigned network address or 
                        associated routing or transmission information; 
                        and
                            ``(IV) the length of the provision of 
                        service by such provider to such customer or 
                        subscriber and the types of services utilized 
                        by such customer or subscriber.''.

SEC. 216. SURVEILLANCE OF CERTAIN NON-UNITED STATES PERSONS UNDER 
              FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Treatment as Agent of Foreign Power of Non-United States 
Persons Who Aid or Abet Certain Terrorists and Saboteurs.--Section 
101(b)(1)(A) of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801(b)(1)(A)) is amended by inserting ``, knowingly aids or 
abets any person in the conduct of activities described in paragraph 
(2)(C) for or on behalf of a foreign power, as defined in subsection 
(a)(4), or knowingly conspires with any person engaged in activities 
described in paragraph (2)(C) for or on behalf of a foreign power, as 
defined in subsection (a)(4)'' before the semicolon.
    (b) Duration of Pen Registers and Trap and Trace Devices.--
Subsection (e) of section 402 of such Act (50 U.S.C. 1842) is amended 
to read as follows:
    ``(e)(1)(A) Except as provided in subparagraphs (B) and (C), an 
order issued under this section shall authorize the installation and 
use of a pen register or trap and trace device for a period not to 
exceed 90 days.
    ``(B) In any case in which the applicant for an order under this 
section certifies that the information likely to be obtained is foreign 
intelligence information concerning a foreign power (as defined in 
paragraph (1), (2), or (3) of section 101(a)), the order may be for the 
period specified in the application or for one year, whichever is less.
    ``(C) In any case in which the applicant for an order under this 
section certifies that the information likely to be obtained is foreign 
intelligence information concerning an agent of a foreign power (as 
defined in section 101(b)(1)(A)), the order may be for the period 
specified in the application or for 120 days, whichever is less.
    ``(2)(A) Extensions of an order under this section may be granted, 
but only upon application for an order under this section and upon the 
judicial finding required by subsection (d).
    ``(B) Except as provided in subparagraph (C), an extension under 
this paragraph of an order under this section shall be for a period not 
to exceed 90 days.
    ``(C) In any case in which the applicant for an extension under 
this paragraph certifies that the information likely to be obtained is 
foreign intelligence information concerning a foreign power (as defined 
in paragraph (1), (2), or (3) of section 101(a)) or an agent of a 
foreign power (as defined in section 101(b)(1)(A)), the extension may 
be for a period not to exceed one year.''.

SEC. 217. ADDITIONAL INFORMATION IN APPLICATIONS FOR ORDERS FOR PEN 
              REGISTERS AND TRAP AND TRACE DEVICES AND BUSINESS RECORDS 
              UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Orders for Pen Registers and Trap and Trace Devices.--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), by striking the period at the end and 
        inserting ``; and''; and
            (3) by adding at the end the following new paragraph:
            ``(3) an explanation by the applicant that supports the 
        assertion of relevance under paragraph (2).''.
    (b) Orders for Business Records.--Subsection (b) of section 501 of 
such Act, as amended by section 211(a)(2) of this Act, is further 
amended--
            (1) in paragraph (1)(B), by striking ``and'' at the end;
            (2) in paragraph (2), by striking the period at the end and 
        inserting ``; and''; and
            (3) by adding at the end the following new paragraph:
            ``(3) shall include an explanation by the applicant that 
        supports the assertion of relevance under paragraph (2).''.

SEC. 218. FORM OF SEMIANNUAL REPORTS ON ACCESS TO BUSINESS RECORDS 
              UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

    Section 502(b) of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1862(b)), as amended by section 211(e) of this Act, is 
further amended--
            (1) in paragraph (3), by redesignating subparagraphs (A) 
        through (E) as clauses (i) through (v), respectively;
            (2) by redesignating paragraphs (1), (2), and (3) as 
        subparagraphs (A), (B), and (C), respectively;
            (3) by inserting ``(1)'' after ``(b)''; and
            (4) by adding at the end the following new paragraph:
    ``(2) Each report under paragraph (1) shall be submitted in 
unclassified form, but may include a classified annex.''.

SEC. 219. REPORT ON VOLUNTARY DISCLOSURE OF BUSINESS RECORDS FOR 
              FOREIGN INTELLIGENCE PURPOSES.

    (a) Report Required.--Not later than six months after the date of 
the enactment of this Act, the Attorney General shall submit to the 
Permanent Select Committee on Intelligence of the House of 
Representatives and the Select Committee on Intelligence of the Senate 
a report on the access provided to the Federal Bureau of Investigation, 
on a voluntary basis at the request of the Bureau, to tangible things 
(including books, records, papers, documents, and other items) for 
purposes of investigations described by section 501(a)(1) of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(a)(1)).
    (b) Elements.--The report required by subsection (a) shall include 
the following:
            (1) A description of the policies and procedures of the 
        Federal Bureau of Investigation for seeking access to things as 
        described in subsection (a).
            (2) A description of the circumstance in which such access 
        is regularly sought.
            (3) A description of the general frequency with which such 
        access is sought.
            (4) A description of the general frequency with which a 
        request for such access is denied.
            (5) An assessment of the success of the Bureau in obtaining 
        through such access information of value to investigations 
        described in subsection (a).
    (c) Form.--The report required by subsection (a) shall be submitted 
in unclassified form, but may include a classified annex.




                                                       Calendar No. 132

109th CONGRESS

  1st Session

                                S. 1266

                          [Report No. 109-85]

_______________________________________________________________________

                                 A BILL

    To permanently authorize certain provisions of the Uniting and 
   Strengthening America by Providing Appropriate Tools Required to 
    Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, to 
   reauthorize a provision of the Intelligence Reform and Terrorism 
 Prevention Act of 2004, to clarify certain definitions in the Foreign 
     Intelligence Surveillance Act of 1978, to provide additional 
investigative tools necessary to protect the national security, and for 
                            other purposes.

_______________________________________________________________________

                             June 16, 2005

                 Read twice and placed on the calendar`